HomeMy Public PortalAbout2011_tcmin1213COUNCIL MEETING December 13, 2011
Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding.
Council Members Present: David Butler, Thomas Dunn, II, Katie Sheldon Hammler,
Fernando "Marty" Martinez, Kenneth "Ken" Reid, Kevin Wright and Mayor Umstattd.
Council Members Absent: Council Member Dunn arrived at 8:12 p.m.
Staff Present: Town Manager John Wells, Deputy Town Manager Kaj Dentler, Town
Attorney Jeanette Irby, Director of Planning and Zoning Susan Berry Hill, Deputy
Director of Utilities Aref Etemadi, Director of Plan Review Bill Ackman,
Environmental Planner Irish Grandfield, Deputy Director of Planning and Zoning Brian
Boucher, Zoning Administrator Chris Murphy and Clerk of Council Lee Ann Green
AGENDA ITEMS
1. CALL TO ORDER
2. INVOCATION: Vice Mayor Wright
3. SALUTE TO THE FLAG: Council Member Martinez
4. ROLL CALL: Showing Council Member Dunn arriving at 8:13 p.m.
5. MINUTES
a. Regular Session Minutes of November 15, 2011
- On a motion by Council Member Martinez, seconded by Council Member
Butler, the minutes of the November 15 regular session were approved 6 -0 -1
(Dunn absent).
b. Work Session Minutes of November 28 2011
On a motion by Council Member Martinez, seconded by Council Member
Butler, the minutes of the November 28 work session were approved 5 -0 -1 -1
(Dunn absent /Wright abstaining)
6. ADOPTING THE MEETING AGENDA
On a motion by Council Member Reid, seconded by Council Member Butler, the meeting
agenda was approved by the following vote after switching the order of the public hearings:
Aye: Butler, Hammler, Martinez, Reid, Wright and Mayor Umstattd
Nay: None
Vote: 6-0-1 (Dunn absent)
7. PRESENTATIONS
a. Proclamation — National Guard
On a motion by Council Member Martinez, seconded by Council Member
Hammler, the following was approved unanimously:
Proclamation
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December 13, 2011
Honoring Virginia National Guard C Company, 3' Battalion
116th Infantry Brigade Combat Team from Leesburg
Whereas, the military organization you belong to today, now known as the
National Guard, was created by a declaration of the Massachusetts General
Court on December 13, 1636; and
Whereas, on December 13, 2011, we celebrate with you the 375"' birthday of the
National Guard; and
Whereas, the Town of Leesburg is proud to be the home of the Virginia Army
National Guard, Company C, 3rd Battalion, 116th Infantry Brigade Combat
Team; and
Whereas, you and your fellow soldiers from C Company have been deployed for
extended periods of time in war zones overseas; and
Whereas, you and your fellow soldiers have sacrificed much to serve our country;
and
Whereas, your commitment to duty and to your country has required you to
leave behind family members and friends; and
Whereas, your sacrifices and the sacrifices made by your family have meant that
the rest of us have not had to sacrifice; and
Whereas, you have served, and continue to serve, our nation with courage and
honor;
Therefore, be it proclaimed that the Mayor and Council of the Town of Leesburg
in Virginia extend to you and your fellow soldiers of C Company our deepest
admiration and gratitude for your brave and noble service to the United States of
America.
Proclaimed this 13`h day of December, 2011.
b. Airport Commission Annual Report
Dennis Boykin gave a presentation to Council on the activities of the Airport
Commission. He stated they have developed a vision and mission statement as follows:
"Our mission is to provide safe operations, unmatched service and modern aviation
facilities in the most fiscally prudent manners. We will strive to be the regional leader in
operating a reliever airport. Our leadership will be attained by dedicated people,
committed to implementing tomorrow's industry standards, today." Mr. Boykin noted
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they have no vacancies in the town hangars and have 93% occupancy in the tie downs.
He stated they have 239 based aircraft of which a few are jets, three flight schools, and
two fixed based operators providing services to clients. He stated they are moving from
being a small, country airport to be a corporate and executive field. He stated the
economic impact of the airport is important and the Virginia Airport System Economic
Impact Study ranks Leesburg Executive Airport third in economic impact among
general aviation airports (airports without commercial airline service). He stated there
are 634 jobs associated with the airport and over 250 people drawing a paycheck on site
for a total economic impact of over $78 million dollars. He stated airports are about
commerce, not just airplanes. He reviewed some of the ongoing projects and stated that
land acquisition is very important. He stated the Crosstrail property will come up for
development in the next few years. He stated the existing plan shows a commercial
development that will be compatible with the airport and conversations about the
realignment of Sycolin Road are ongoing between Town and County staff to support the
500 extension of the runway. Further, he stated they continue to work with County and
Town staff regarding development in the surrounding area. He stated they are in
negotiations with the Customs service to allow them to service international flights.
Reid: It's a very good report. The question I may ... I might want to start with you,
John. The CAFR is not out yet. Do you know where we are with the Airport Fund? Is
it producing positive cash flow, is it in a deficit, is it better since last year?
Wells: Things are better. We are making ... as Mr. Boykin mentioned we are looking at
some significant changes in how we will be presenting the Airport budget in the future.
The bottom line is that we will be removing the airport from the enterprise fund status
and having it be part of the General Fund. That has a positive financial impact on the
overall status of the town, it allows for a cleaner presentation of the bottom line for the
airport and we are working out those details and we will be presenting that to you. That
is a little sneak preview of what's to come.
Reid: I thought if you take it out of the enterprise fund... is that going to affect its ability
to apply for various grants and stuff?
Wells: It will not affect any ability to apply for grants. We don't see any downside. We
have worked this out and worked very closely with the FAA. We have talked to our
auditors, our financial advisors and we don't see a downside at this point.
Reid: Well, as the next supervisor for this district, I know we have talked to Tom Toth
and we have talked about it after the report came out that you cited about the impact
that it has on the economy. I personally feel the county should be helping to pay for it.
I feel like we should be moving toward some kind of authority or something where the
county has a vote. The county puts the money in but doesn't start doing things like
trying to raise the airplane tax ... the franchise tax, which is counterproductive. I just
want to throw that out to you and my colleagues that I am more than willing to try to
see if we can work this out because the new Board of Supervisors is looking very
strongly at an economic development authority, which means it would have the ability
to finance various economic development projects, sort of like Fairfax County. So, we
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are looking very seriously at scrutinizing the budget and cutting back on a lot of things.
So, if this is, as the report says, an engine for economic development, then I think it
would behoove the County to pitch in. I know this has not been a priority for the
commission, but I do want to throw that out to you and my colleagues for consideration.
Wright: No questions. Thank you very much for the report.
Martinez: I was making some notes. Dennis, it's always good to see you. One of the
things I always want to bring up is that we talk about the $74 million in revenue that is
generated in this county and the jobs and that a lot of that goes to the county. We, as
the town, don't really see a whole lot of that revenue yet we pay for the full burden of
the airport. I just want to make sure that is always noted. Also, on the US Customs
Service, what that allows us to do is to have more customers visiting the airport,
especially from overseas. It avoids them from having to fly into Dulles or National or
other airports. It's easier to come into Leesburg. Also, I wrote a note about land use
and that was one of your priorities. I noticed that you mentioned it in the master plan
update, which was great. It is always good. Also, too on the fees and charges, I know
our town has some fees and charges and I hope to continue to work to prevent the
county from doing that and getting... since we are paying the full burden, we should
continue to be protected against that. The last thing is, on our ... we are not just a general
aviation dual -prop airport, we also have jets coming in. What I would love to see in the
next report is some category airplanes that do come in, like the Gulfstreams and others
that come in to give people an idea of what kind of jets we have and the traffic pattern
that the ILS allows us to do ... where flights come into Leesburg. On your map, I just
wanted to show people that these rings are built around National, the president, the
White House and stuff and we are caught in that little edge there. Luckily we got... and
I have to say that we are really proud of our airport commission. They are one of the
most active commissions, not just for the town but within the county and the region,
especially dealing with the FAA. They have been very effective in doing that and I
believe that's probably why we got that little bump out that keeps us from having to file
flight plans, which is, particularly on a clear day, filing a flight plan when you can just
go VFR, inhibits some pilots from flying and also that allows us to pick up more
customers that would normally fly to Manassas or Winchester so everything we are
going ... I shouldn't say we ... the Airport Commission is doing is working to allow our
airport to be the airport it can grow up to be. I just want to thank you guys for all your
help.
Hammler: Dennis, thank you so much for the report. It was excellent. Just echoing
and elaborating on Marty's key points that he already made. You have had tremendous
successes, most notably not only the key lobbying efforts, whether it is the
airport/ airplane tax, things like Crosstrails and the encroachment of residential
development but it was very significant bringing the ILS which was a new day for the
airport. The opportunities associated with bringing customs and a customs base to the
terminal are significant so just appreciate that. I also appreciate some of the key points
you made about staff and the collaboration and cooperation with the county. It just
made a huge difference and I think it does set the stage for the leadership of the next
Board of Supervisors in terms of the next stage of our discussions having them involved
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in things such as the Air Show as a sponsor. Marty is writing me a note that actually ties
into one of the key questions I did want to ask, which is in fact I know we are going as a
Council to get very deeply involved in the budget come next year ... you are pointing out,
John, you are talking about a major transition from an enterprise fund to the General
Fund, but clearly we as a Council need to look at the debt service on the terminal and
the decision that was made for that terminal and what we can be doing to offset and
ultimately create more revenue such as things that we have talked about... whether I
know Delegate May has been very interested in things like a restaurant and that is a
thing that Marty also pointed out. So, I look forward to that discussion when we spend
more time on that. My final question is, I was able to take a quick tour of the FAA
operations ... I actually did not realize they had such a significant office operation and I
understand they may be expanding. Is that true? If so, it seems like it would also
important relative to important office space in town.
Boykin: It is and I am surprised to hear you say that they let you in there, but that's
pretty cool. They are considering expanding. They have had some initial "well what
could we do if..." discussions. They are not real serious about it because there isn't a lot
of money right now. They had a significant leadership change. I know you are familiar
with the concept of certification, accreditation and cybersecurity issues. That is what
they do there... is that kind of work. Their proponent for doing that for other agencies,
just left the agency and I haven't talked to him to find out why. I don't know if the new
CIO is going to be as much of a proponent for doing fee for service work for other
agencies. The FAA does CNA work for USDA and a couple of other agencies ... a lot of
Department of Transportation units. Whether Dave's replacement is a big proponent for
that, not sure. We are going to follow -up with them and we have multiple reasons to
follow -up on that.
Butler: Two things. Dennis, great job. I think the airport commission is fantastic and
they have moved this airport significantly forward just in the few years I have been on
the Council. Second, it does look like Leesburg, Florida has took the name already, so
we are out of luck.
Boykin: They are Leesburg International, right?
Butler: They are, so we can't change the name to that. Thanks.
Boykin: Oh well.
Mayor: Dennis, thank you so much for the report.
8. PETITIONERS
The petitioner's section was opened at 8:04 p.m.
Neely Law: Happy Holidays to everyone. I hope you have a safe, enjoyable holiday
with your friends and family. Dear Mayor Umstattd and Members of Council, I am
here tonight to provide you with essentially clarification comments as chair of the
Leesburg Watershed Committee based on the staff report and resolution that is included
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in your packet tonight. First, I would like to clarify that there are two facets of low
impact development or LID. First, LID addresses site, or the front end of land
development, that is the site design, placement of buildings, and what the physical
structure of the site may look like. What is important for low impact development or
what it embraces at that stage of the land development process is essentially reducing the
amount of impervious cover that is on the site or effective impervious cover. What I
mean by effective impervious cover is even though you may have a hard concrete
surface, you are directing or treating the run off in a way in which you are allowing it to
infiltrate or be treated before it is released into the stream. So, by reducing the amount
of run off from this impervious cover, you are also helping to protect our streams. Part
of those development practices to reduce impervious cover ... could be looking at road
standard widths, parking pavement, or parking areas, things like that. The second part
of low impact development deals with specific types of stormwater management
practices and I think that's the first thing that comes to mind when people hear low
impact development. Those are your rain gardens or your bioretention areas in parking
lots, your green roofs and your pervious pavement. Those have specific regulations and
maintenance requirements, but the resolution before Council tonight deals with that first
component of low impact development, the land development regulations that look to
reduce impervious cover, thereby reducing run off leaving that site and improving our
streams. That is what the watershed committee would like to focus on in it's next
efforts, not specific stormwater management practices as staff has informed us is on their
calendar and is much more comprehensive process that needs to be dealt with in another
arena other than the watershed committee. So, the watershed committee is asking
Council to approve the resolution so we can move forward on what we are calling these
low hanging fruit of land development applications to look at some ... not all, of the land
development regulations. For example, as I had mentioned road standard widths
subdivision versus in town, looking at parking area ratios or parking space limits or even
to the extent that we can streamline crediting process for landscaping with low impact
development practices... streamlining that land development approval process and
removing one step in that land development application process. So, anyway the staff
report recommends this two phase process, but the resolution before you is asking
Council to approve the watershed committee to move forward to look at phase 1. Look
at a few of the land development regulations where we can facilitate the implementation
of low impact development on land development regulations alone by reducing
impervious cover. Those recommendations would be coming forward to you within a
year's time that would also involve the expansion of the watershed committee, itself.
So, this resolution at this time does not request any funds from Council in the upcoming
budget year. So, I do request that Council look favorably on that resolution and have
the watershed committee move forward in it's work.
Oliver Peters: I am Oliver Peters. I am a member of the Leesburg Technology and
Communication Commission as well as Loudoun County's cable commission. I was
here before the council earlier this year about public access. A quick review, you recall
that Comcast has signaled that they are going to end their support of public access here
in Loudoun County as well as close their Ashburn studio. That will have an effect on all
governments as far as broadcasting meetings. I am going to briefly read a notation that I
made myself here earlier this year. " Comcast end of support for public access basically
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means this. Comcast has been the gatekeeper for all things public access (PEG) for a
number of years. Much of what the public sees in the way of broadcasting county and
town government meetings, on cable TV, Comcast has had a hand in production and
airing of these meetings. When the studio closes, the PEG support will disappear. The
studio has also been a source available to all Loudoun County residents to use for free to
create their own public access content. There are a handful of shows that are actually
created within that studio, Inside Loudoun. Tree Commission does some spots there.
They will need to find alternative facilities for a fee to continue operating. There are
actually 26 shows that are brought through that Comcast studio. Those will go away.
Then there are many shows that are imported from other sources, created elsewhere.
Those 26 shows that Comcast technicians program into the PEG servers to air on all of
Loudoun County's cable systems at different times. That is done at that studio. With
no one left there to push the button, so to speak, how will any of our PEG programming
systems get broadcast. Since I came to you in July, we have ... or I have chaired a
handful of meetings with representatives from the County and the town and Comcast
and Education so that we could move forward in creating a Loudoun County joint
venture to promote or continue on public access. We have all agreed that we need to do
something, because if we don't here is what could happen ... three possible scenarios.
We could take no action whatsoever. Let public access come to an end within Loudoun
County. This will force the County government to find and fund their own resources to
broadcast their respective government meetings. That could move to option 2 then. So,
we have the county and governments spending their own money, scrambling to find
county camera operators, sound personnel, get camera equipment, find that guy to push
the button to get the stuff broadcast, means spending money. Times two. County, town
has to spend that. Because if the county hires personnel at x dollars per hour, plus
spending x dollars per hour to obtain equipment and so forth, the Town of Leesburg
needs to do the same thing; however, what if you were to pool those resources. That's
option 3. If the County of Loudoun, Town of Leesburg were to work together to form a
partnership, a Loudoun County public access system, then all those necessary resources,
camera, sound equipment, office space, studio could be shared by both parties, then add
in the possibility of sharing resources with education like Monroe Technology for
example and having Comcast help our new Loudoun County PEG get off the ground,
donating equipment, maybe some seed money ... that would create one entity. So, I have
come to at least brief you ... tell you that I brought this message to the Board of
Supervisors after I met with you, so that was in July or August of last year. Now the
Board has completely turned over, so I am going to bring this same message again at
their next meeting, which is January 41h or 3rd... something like that. I am going to
present this to them. I know Katie has been very helpful. John Wells has been very
helpful in pushing this forward, but I wanted to bring that back to you and tell you what
we have come up with. Okay?
Mayor: Thank you very much. Keep us posted.
The petitioner's section was closed at 8:14 p.m.
9. APPROVAL OF THE CONSENT AGENDA
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COUNCIL MEETING December 13, 2011
On a motion by Council Member Reid, seconded by Vice Mayor Wright, the following
items were moved for approval as part of the Consent Agenda:
a. PMW Farms Waterline Upsizing Reimbursement
RESOLUTION 2011 -144
Authorizing Reimbursement for Water Line Upsizing and Installation of a
Casing Pipe at PMW Farms Development
b. Supplemental Appropriation — Virginia Department of Aviation Grant for
a Security Gate for the North End Apron
RESOLUTION 2011 -145
Approving a Supplemental Appropriation in the Amount of $22,258 to the
Airport Fund Operations Budget for a Virginia Department of Aviation
Grant for a Security Gate for the North End Apron
Supplemental Appropriation — Virginia Department of Aviation Grant for
the 2011 Leesburg Executive Airport Air Show
RESOLUTION 2011 -146
Approving a $10,000 Supplemental Appropriation to the FY 2012 Airport
Fund Operations Budget for a Virginia Department of Aviation Grant for
the 2011 Leesburg Executive Airport Air Show
d. BZA Appointment Recommendations
RESOLUTION 2011 -148
Recommending Candidates for Vacancies on the Board of Zoning
Appeals to the Circuit Court
f. Friends of Leesburg Public Art
RESOLUTION 2011 -149
Town Council Endorsement of the Paperwork for the Formation of
501(c)(3) Organization, Friends of Leesburg Public Art (FOLPA)
RESOLUTION 2011 -150
Support for the Friends of Leesburg Public Art's Application to the
Special Events Committee to Host a Paragon Art Festival in the Fall of
2012
g. Issuance of a Sign Permit for TW Perry at 41 Catoctin Circle, SE
RESOLUTION 2011 -151
Authorizing the Issuance of a Sign Permit Pursuant to Zoning Ordinance
Section 15.9.7. Unusual Site Constraints for TW Perry Situated at 41
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COUNCIL MEETING December 13, 2011
Catoctin Circle, SE on Property Situated at 43 Catoctin Circle Identified
by Loudoun County Land Records as Parcel Identification Number 232-
48 -5253
h. Leesburg Central Cost Sharing Agreement
RESOLUTION 2011 -152
Authorizing the Town Manager to Execute a Cost Sharing Agreement
Between the Town and A &W Leesburg Central, LLC, for the
Construction of Frontage Improvements Required by the Downtown
Improvement Project at the Southeast Corner of Loudoun and Harrison
Streets
i. Adopting Airport Rules and Regulations
RESOLUTION 2011 -153
Adopting Revised Rules, Regulations and Minimum Standards for the
Leesburg Executive Airport
The Consent Agenda was approved by the following vote:
Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor
Umstattd
Nay: None
Vote: 7 -0
10. PUBLIC HEARINGS
a. To Add. Amend and Reordain Town Charter, Part 1, Chapter 2 Section
2 -2, 2 -3 and 2 -4
The public hearing was called to order at 8:33 p.m.
Jeanette Irby: As Council is aware, Town Charter amendments are necessary to move
the date for the Town Council and Mayoral elections from the first Tuesday in May to
the General Election date in November beginning in November 2012 and to provide that
the town elections will remain non - partisan. As Council is also aware, in November
2011 there was a citizen referendum which was held pursuant to Virginia Code Section
24.2- 222.1. The question on the ballot gave voters a choice on whether or not to move
the election. It passed. Upon passage of that referendum, it became the responsibility of
my office to submit the documentation to the Department of Justice for a preclearance.
That was done last month. The Department of Justice has 60 days on whether to say
yay or nay with respect to the change. I anticipate we will get a response sometime in
mid - January. The Town Charter at this point needs to be amended to be consistent with
the date of election, number 1 and number 2, one of the unforeseen consequences of
moving the election is that the elections become partisan when they are moved to
November unless the Town Charter specifically states that the elections will remain
nonpartisan. So, that will also be part of the charter amendment. Additionally, the
referendum indicated that the Council Member's terms who are presently on council by
virtue of the referendum... their terms would be extended six months or until the new
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members have been so qualified and that could have happened a week after the election
in November. So, for consistency's sake, your terms will continue very clearly through
the end of December and the new terms will start January 1, so that there is no
confusion about when exactly the terms will end with respect to the extension because of
the referendum. So, the Charter codifies the referendum. It does a little bit of clean up
with respect to how long the extended terms will be and it retains the nonpartisan nature
of the town elections. Bills were due for pre - filing last Friday. Of course, this wasn't
passed, but our Senator Herring and Delegate -Elect Minchew graciously agreed to carry
this forward. It has been submitted to legislative services for pre - filing even though it has
not been formally adopted by Council. Once it is formally adopted, I will be sending
them the formal paperwork. I don't have any other comments with respect to this
memo other than it has been advertised appropriately and I am requesting that Council
take action on this ordinance this evening.
Dunn: Just so that we are clear on a couple of things for those who may have questions
about it. The extending of the terms through January... through the first of January is a
requirement by the state of Virginia?
Irby: Well the Code said ... it was kind of funny. The code said until so qualified, so
after the election they could have been qualified. So just to make it clear, we ended the
term on December 31.
Dunn: In other words, that extension though, does not come from the Council.
Irby: That was automatic.
Dunn: And ... there has been some questions about... concerns about well I didn't vote
for these people to serve for any more than four years, but that is not an option for us.
The only option that we as Council members would have, if we are so opposed to
serving that extra term is that any one of us could opt to resign before our new term, at
which time we could always appoint somebody else to fill that empty seat.
Irby: The members who remain could appoint somebody else. Yes.
Dunn: The ... let's see ... this is extending the elections starting even years from here on
out. There was some talk about how it was only extending it for one year. It was only
going to be the...
Irby: The charter change cleans that up.
Dunn: I think that's the only questions I had. Thank you.
Reid: I just wanted to actually thank the Vice Mayor for noticing that we needed to add
in there nonpartisan because I can assure all of those up here on the dais it was never the
intent of anybody involved with the November Vote Yes committee to make it into a
partisan election. In fact, we had both republicans, democrats and independents
gathering signatures and working on the whole effort with us. So, I am glad that is in
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COUNCIL MEETING December 13, 2011
there ... that it is going to be a nonpartisan election. I just respectfully request my
colleagues to support this tonight.
Hammler: Jeannette, just a follow -up on what Tom was saying, but more specifically
for those of us who in fact are having our terms extended, Dave, myself, Kristen and
Tom, there is ...
Mayor: Everybody.
Hammler: But next year specifically... okay, so it impacts the next two years after that,
so it is a question of we are obviously all voting relative to extending our own terms and
there is no inherent conflict in specifically a Council Member given the fact that the
referendum passed, so just for the record, a Council Member therefore has to vote to
extend his or her own term.
Irby: If you want the Charter to clean up the referendum, then yes you do.
Hammler: The only kind of additional editorial comments that I will make kind of
adding on to Ken's point is this was a unique situation where the Council made the
determination that this was the one singular issue that we as representatives of the
citizens who had come forward to petition us strongly seeking that the election be
moved in fact we determined that this Council would not make that determination. I
guess my own personal... having made the motion having heard all the petitioners who
overwhelmingly supported moving the election, it struck me that as a representative that
I was going to embrace... since been ratified by the fact that it was overwhelmingly
passed through the referendum, but now we will be having our terms extended next
year, which aligns with the national election versus, if you will, the state. Originally I
did suggest the motion to do it in the odd years, but it is what it is, and obviously I will
be supporting it so truly it can be nonpartisan to the extent possible.
Butler: Yes, I am glad that we let the people speak on this and not making the decision
for them. But on a more tactical note ... I think there is a ... and I don't know if this is
material, but there is a slight error in the proposed language. It says that Councilmen
should be elected to four year terms on the first Tuesday in November of every even
numbered year, which isn't quite right. It is actually the Tuesday after the first Monday.
Irby: Okay, I will change that.
(Inaudible).
Irby: No, it is Councilmen in our code. Throughout our code, we have determined that
men will be the generic for male or female and it just a style change throughout the
entire code. I will make that change, Mr. Butler, thank you.
Butler: We found out this past November that the elections were not on the first, but on
the 8"'. So, that would be good. I would hate to have the Council elections on
November I". The good news is we won't to deal with that for another six years.
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COUNCIL MEETING December 13, 2011
Mayor: Nobody has signed up to speak. Does any member of the public wish to speak
to this issue.
There were no members of the public wishing to speak to this public hearing.
The public hearing was closed at 8:44 p.m.
On a motion by Council Member Martinez, seconded by Council Member Reid, the
following was proposed:
ORDINANCE 2011 -0 -022
Amend Election Date of the Mayor and Members of Council; Elections are to be
Non - Partisan
Reid: Just glad to see that we are here at this day. I do have a question, if I may,
Madam Mayor. So that means November Pt... excuse me... so that means the swearing
in has to be on New Year's Day?
Irby: No, it can be done earlier after the election results have been certified to be
effective on January 1, the same that you do now with respect to your July 1St date. You
get sworn in sometime in June with the effective date...
Reid: But it can't be January 2"d, it has to be the first or prior.
Irby: No, the term starts January 1.
Martinez: I just wanted to reiterate Katie and Dave's comments that I was glad to see
that the public weighed in on this and they made the decision to do it. I will continue to
support the public.
The motion was approved by the following vote:
Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor Umstattd
Nay: None
Vote: 7 -0
b. Sale of Real Property to Virizinia Electric and Power Comnanv Located at
Kenneth B. Rollins Water Treatment Plant Site and Conveyance of Utility
Easements and Access Rights across Town Property for Construction of
an Electric Substation
The public hearing was called to order at 8:45 p.m.
Jeanette Irby: As Council has been informed previously and agreed to, there is a portion
of land in town near the Kenneth B. Rollins Water Treatment Plant that we are going to
convey to DVP. We have agreed upon a price and some additional terms and
conditions. As a requirement, when you sell public property, there needs to be a public
hearing to see if the public has any interest with respect to this transaction. Since we had
anticipated that we would be a little bit closer to the finish line; however, there are come
12 1 Pa,,c
COUNCIL MEETING December 13, 2011
concerns that the County has raised with DVP that does not involve the town, so we are
having the public hearing this evening. At some point, when the details get finalized
with respect to concerns raised by the County in the application that DVP has with the
County, we will be bringing back the MOU with respect to DVP. Between the town and
DVP, there are no really outstanding issues. We are pretty close to an agreement, but
this satisfies one of the requirements in the Code with respect to having a public hearing.
DVP is present this evening ... Mr. Sargeant, if you have any questions.
Mayor: One question for Jeannette. Do you then anticipate us not taking action tonight,
or do you recommend we do take action?
Irby: I recommend that you take action and the resolution is basically the intent to go
forward with the deal. If for some reason we don't come to terms on the MOU, the deal
will not go forward and we would just rescind the resolution, but I am requesting action
this evening.
Mayor: No questions from Council. Nobody has signed up, but is there anybody who
wishes to speak, public, DVP, County of Loudoun, County Planning Commission?
There were no members of the public wishing to speak to this public hearing.
The public hearing was closed at 8:48 p.m.
On a motion by Council Member Reid, seconded by Council Member Martinez, the
following was proposed:
RESOLUTION2011 -154
Authorizing the Sale of Real Property to Virginia Electric and Power Company
Pending Execution of Memorandum of Understanding
Reid: I just want to thank the County and DVP for working with us on this. It is going
to be a good deal. Thank you very much.
Hammler: Just appreciate also staff's support relative to where we needed to head with
this. Thank you.
Mayor: I appreciate Mr. Sargeant, you're being here. Thank you so much ... with your
colleague. Thank you to the County for being here. Hearing no further comments, Ken,
do you have any further closing comments before we go to a vote?
The motion was approved by the following vote:
Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor Umstaud
Nay: None
Vote: 7 -0
C. TLZM 2010 -0003 Village k Leesburg Concept Plan and Proffer
Amendment
13 1 P ,i
COUNCIL MEETING December 13, 2011
The public hearing was called to order at 8:50 p.m.
Michael Watkins: I am here to present the rezoning application for TLZM 2010 -0003.
We are going to break up the presentation into two parts and I think I have the easier
part tonight, presenting the Concept Plan. Brian Boucher, the Deputy Planning
Director, and Chris Murphy, the Zoning Administrator, will also help with the proffer
questions.
Application summary for you this evening. It is a concept plan amendment. Buildings
Q and X and Market Street uses will be amended. For building Q, the use will change
from office to retail /restaurant and the square footage will change from 36,000 square
feet to a 13,600 square foot building. Building X, the square foot will change from
17,000 square feet to 53,400 square feet and the size and arrangement of the building
area will change. Market Street uses, these will be the liner office buildings to the
parking deck closest to Route 7. The applicant proposes to add additional personal
service and accessory B -4 uses. Again, there are the associated notes and tabulation
changes to the plan. The zoning map, again the property is zoned B -4, PRC and I -1.
There are no changes to the boundaries of the zoning districts. In terms of the town land
use compliance, again the uses and densities are consistent with previous approvals.
Generally consistent with the elements of the Town Plan's goals and objectives and the
proposed change will have no negative impacts on the adjacent roadway network. The
graphic here illustrates building Q, the upper left hand corner graphic shows the
surrounding buildings. To the north is garage A, to the east is Crosstrail Boulevard, to
the south is Landbay C and Russell Branch Parkway and to the west are buildings Y,
which is a bank and Building N, which has associated retail uses in it. The site plan is
approved for a 36,000 square foot office building with a maximum building height of 35
feet. Below, the graphic shows you the applicant's proposal. Again, somewhat similar
in footprint; however, the proposed building will be 13,600 square feet. It will be a retail
and restaurant building with a maximum building height of 40 feet. The applicant has
worked with us to change the location of the dumpster that was located here to a
location over here so as to eliminate any nuisance, odor and noise with that dumpster
location. The elevations for building Q, the top elevation will face the field of parking.
The lower graphic shows the elevation that is facing Crosstrail Boulevard. The planning
commission stressed that the applicant work towards decreasing the appearance of the
building elevation being service bays and I think the applicant will address that when
they come forward with their certificate of appropriateness with their site plan. The
upper graphic is the elevation that faces Russell Branch and the lower graphic will be the
elevation that faces Garage A. Building X, located a little bit further up Russell Branch
Parkway, is adjacent to larger parking garage C. It is site plan approved for a 17,000
square foot office building with a maximum building height of 40 feet. As proposed, this
will be 55,440 square foot office building with a maximum building height of 70 feet.
Again, here to meet use ratios, the applicant is consolidating the office uses into one
building to facilitate the retail /restaurant uses in Building Q. Building elevations for
building X. Then again, for the liner office buildings adjacent to Route 7, the red
rectangle shows the area where the applicant is proposing to add additional personal
service and accessory B -4 uses. The applicant has acknowledged that prior to their site
plan being approved, they must go to the BAR to address the design guidelines for
14 t' a c
COUNCIL MEETING December 13, 2011
Building X. They are currently not incorporated and will do so with an administrative
approval through the BAR. The Planning Commission held it's public hearing on
November 17. The commission agreed with the changes in use and density, suggested a
proffer use restriction on nail salons and those would be in the liner office buildings
adjacent to Route 7. They stressed the importance of designing the Crosstrail Boulevard
elevation of Building Q so as not to appear to be service entrances to the building and
they did not agree with the proposed proffer changes regarding capital facility payments
or the AADPs. Their recommendation was for support for the concept plan changes
only. With that, I will turn this over to Brian Boucher to address the proffers.
Brian Boucher: Madam Mayor and Members of Council... there really are ... you saw
going through the concept plan and the actual use changes they are making, the building
location changes, etc. We don't have a lot of disagreement with that. We don't have
any disagreement. But there is some disagreement with the proposed proffers and there
is really, I'd say, three major areas ... Three major areas the proffers change and that's
with regard to permissive uses, density, and various things shown on the concept plan.
Secondly, the applicant has revised the proffers regarding the annexation area
development policies and third, they have revised the contribution for the capital
intensity factor payment to Loudoun County Public Schools, which would essentially
change the proffer to eliminate any payments for that purpose. What you have just been
handed out is hopefully a proffer package that has color coded in an effort to make
things easier for you to understand. We don't do that very often. What I have done is
color coded things, so I am going to walk through the proffers because some we do agree
with and highlight the areas where we are different. So, if you go to page 1, I am going
to talk about the first thing we disagree with. If you look at page 1, you will see some
blue and green on the page. The blue are changes that the applicant is proposing to
make that staff has no disagreement with. So, anything you see in blue, we agree with.
Now, the green, the strike through, is language the applicant is proposing to delete,
which staff believes should be restored. I am going to talk about that briefly. Right on
page one, the reference to Virginia Code Section 15.2 -2303 is eliminated by applicant.
Now, this is a change we did not request, but the applicant takes out this sentence
referencing that enabling statute under the Virginia code that we use when we approve
proffer amendments here. That is something that we typically reference in our proffers.
It is saying people this is what we are using. There are a number of enabling statutes in
the state code. We had an experience recently with Cornerstone, of all things, where we
actually had the old statute that we used ... things change over time and there is a new
enabling statute. Actually in that case, they were trying to make some point to that,
saying A, if you have the wrong one or you don't mention it, you have an invalid
rezoning. We think that what we need to do is just keep that in there. We see no viable
reason for taking that out. It would make this different from what we do in all other
proffers so we would recommend that language be restored. Now, going onto page two,
there are some changes in uses and that's language in blue. What you really see there is,
they have asked for an expansion of uses for their office buildings that are out on Route
7. Mike explained some of that to you. This is just the proffer language that would
allow that to happen. Yes, it does not include nail salons, at the planning commission
request. So, that language is in there and we don't disagree with that. We are showing
it in blue because we think that is something that you need to do to effectuate your
15 I P�
COUNCIL MEETING December 13, 2011
changes in buildings Q and X. Turning to page three, they have also added a sentence
that just says Building X depicted on sheet 3 of the concept plan will be constructed to
include at least 55,440 gross square feet of office uses. Again, we agree with that. That's
consistent with the concept plan. We think they need to put that in here to help
understand and effectuate the changes on the concept plan. Now, if you will turn over
to pages 10 and 11, and really go to page 10, I guess. At the bottom, that's proffer 1E7.
That is dealing with transportation. You will see some language that is in red and
double underlined. That is language the applicant is proposing to add, that we would
recommend be deleted. We do not agree with inclusion of this language. Essentially
what old proffer lE7 did was it gave ... because they built the interchange, it gave the
applicants credit for off -site road transportation contribution under the proffers. We had
this thing, based on the uses, it's a formula we use ... it's appendix B of the Town Plan.
We will say we recommend that you make a contribution for off -site road improvements
of a certain amount. We felt at the time, that they had exceeded that contribution by
things they were actually constructing ... that was struck. That's the old proffer. They
did not have to make that contribution. What they would like to do now is say that
construction of that interchange would also take care of any requirement of paying for
school capital facility contribution. That is what the language would do. Staff
recommends that we actually delete this and maintain the existing language. There is
really some major concerns as to why. First is this proffer, based on 635 units, $7,809
per unit and then the townhouses, $15,000. It is basically $5,285,000 in this proffer. So,
if you change this language that would be monies that would not be collected. The
county, we asked because the applicant... you as the council are free to do whatever you
want when you are reviewing proffers. The applicant was wondering how would
this ... saying if it was in the county, they would have given us credit for this so the
County is a referral agent to us on applications. We sent it to them and asked them
would you all apply... do what you would normally do and would you give them a credit
for this. Applying it, the referral that we got back from the county actually said they
would not, in case, under these circumstances give the credit. So, we felt that as staff,
it's a little bit unusual. We don't use their proffer guidelines. You haven't authorized us
to use them to then go and apply them different from the way the county has used them
for eight years, might be a little bit hard to explain. So, third is the Annexation Area
Development Policies. When this area is an area that the town annexed. This land is an
area that the town annexed back in 1984. The annexation order had certain clauses in it
that the town must respect. I have set one out here that gives us some pause. It says this
"the town agrees to enforce including equal participation with the Board of Supervisors
in lawsuits any proffers in the annexation area. The Board of Supervisors and town
agree to seek incorporation into the annexation order a provision to the effect that the
Board of Supervisors retains the right and authority to enforce proffers made to the
county. That is annexation order, paragraph 12. Why that gives us concern is it is
basically saying that if there is a proffer that affects them, at least that is one way we read
it, they have a right to come and enforce it against us. If we are not doing it, they can.
Here the applicant is asking for almost a retroactive application. You may hear that
there is a dispute. We believe that some proffers should have been collected. Staff made
a mistake. We didn't collect it at the right time. We found the error through an audit,
notified the applicants and they disagree. Our concern here is, some of this money
about $2.6 million should have been collected. $2.6 million has not been
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COUNCIL MEETING December 13, 2011
collected... they haven't given us yet, but they are asking to be free of all of that
obligation. We are concerned that there is a retroactive effect here and the county may
say that is a proffer already due and owing and we would like it to be enforced.
Reid: So, it's $2.6. I think the Town Attorney said yesterday it was $2.2.
Boucher: That's what's owed and then there is another $2.6 that has not been collected
because they haven't pulled the permits for those additional 300 dwelling units.
Reid: But that could change if they do their rezoning?
Boucher: The number of dwelling units ... you are referring to a separate rezoning or this
one here?
Reid: A separate one.
Boucher: Things could change with regard to that number. You will have to take a look
at it and see what you decide. At the moment under these proffers, there are 300
additional units that have not been constructed that would be built in Landbay C and the
proffers call for a contribution for those units.
Reid: And it's basically ... is it a pass through? We collect the money from them and
give it to the County?
Boucher: That's correct. The money is not our money.
Reid: And the County would put in into what bucket?
Boucher: It goes to the Loudoun County Public Schools. By Resolution 2005 -111 that
was adopted, it is to enforce this County proffer guideline where for school capital
facilities for each dwelling unit applicants are asked to contribute a certain amount
depending on the type of dwelling unit. By that resolution, the money would be
collected and would go to the Loudoun County Public Schools.
Reid: But the money that we collect on the units down the road goes to the town?
Boucher: The money that we would collect under this proffer ... the school capital
facilities would also go to the Loudoun County Public Schools.
Reid: So, you are talking about $4.8 million?
Boucher: All told, unless my calculations are wrong... it's about $5.285.
Reid: I see. Therefore, the County has no leeway as to what to do with it. The County
has no leeway on what to do with the money?
17
COUNCIL MEETING December 13, 2011
Boucher: The money is earmarked... already earmarked for the Loudoun County Public
Schools.
Reid: Well, it sounds like shades of PMW Farms, folks. Meaning that the money may
never come back to Leesburg. So, thanks.
Hammler: Madam Mayor, may I just follow -up with a comment? Not a question, just a
comment. We frequently, as a Council, remind the County that we are part of the
County. So, I don't want somehow this discussion to be misconstrued that somehow
the town is not benefiting relative to the allocation of money that goes to a significant
part of our tax dollars that we as town taxpayers pay.
Boucher: If you will turn to page 17 on this. I actually put that in the presentation.
These are also dealing with the school capital facilities contribution. So, proffer 1E7,
that we just talked about is putting the clause in there to give them credit for the
transportation improvements for the school capital facilities. The applicant is also
looking to change Proffer 10 on page 17, which really dealt directly with it. The
language they would recommend is that the applicant has complied with Town Council
Resolution 2005 -111 by constructing the regional transportation improvements described
in proffer lE2A. Basically that's the interchange that is Russell Branch Parkway and
that's Crosstrail Boulevard. Point to know, one reason staff doesn't agree with this
language, we have never given anybody full regional credit for building ... if there is a
four lane road your property, two lanes are necessary to access your property. We don't
give you regional credit for that. Worried about this ... it would set a precedent. You
build a road on your property, you get regional road credit. So, we wouldn't as they are
recommending give credit for all of that. We always kind of say, two roads half section
you need just to get in and out. Also, what this would effectuate is that very
purpose .... the $5.2 million would not be due and owing. Any of it. The $2.6 million
would no longer be due and owing and the $2.6 million that hasn't been paid, would
also not be due. So, staff is actually recommending the applicant maintain the existing
language in the proffers. If you will look on the next page, because I know it gets
confusing ... I put on 18, you will see staff's recommended language. I just wanted you
to see what that language would look like. So, you see at the top of page 18 staff is
recommending ... first it's the first paragraph here dealing with school capital facilities.
You see, it is really just the language that is already in the existing proffers, no change.
Now, there is a second part to Proffer 10 and it deals with the annexation area
development policies and a contribution that was being made under those policies.
When this rezoning was approved, the AADPs did not call for any extra residential
density there. So, what the policies called for, Town if you do that you need to collect if
it is over and above what we had planned for the area, you need to collect this
annexation kind of payment that then goes to the County. I think you all may be
familiar with that and might have had a few discussions in the past about what's already
been collected. So, the applicant has put in a certain amount of money, we acknowledge
it has been collected. They paid the right amount for the 335 units that they have so far
pulled residential zoning permits for. In this proffer, the applicant rather than keeping
the existing language, would like to change it. Some things that are significant to the
town is the thing that could change the intent is they would like to delete the language
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COUNCIL MEETING December 13, 2011
that says any payments owed to the county under the annexation agreement. In other
words, we collect these payments under the AADPs. That's what that money is for. It
is to go to the County. We don't see any real important reason for changing that
language, so we are recommending that you keep the language the same. The other
thing they propose is they would like the money they paid in here to be put into this
proffer. Again, it changes it extensively, as you can see. Again, we would recommend
just maintaining the same language. With one major change. There is some language in
blue here. Again, language in blue struck out. We agree with them. You can take care
of that. That gave them something that was supposed to happen within 12 months of
the approval of the original rezoning. If they did something, it could have affected the
Annexation Area Development payments. Basically, if they went to the county and the
county said, you know what? You don't need to do it. Then they would have given us
$2,000. That didn't happen. That option is gone. For purposes of just shortening these
long proffers, we don't disagree with excising that language. So, also on Page 18, what
you would see is language that staff is recommending. It is essentially keeping it the
same except for cutting out that paragraph. There are a few things that the applicant... a
few changes that he made that you will also see in blue that we agreed to. Overall, if
you take proffer ten, when it comes to the first part dealing with school capital facilities,
we recommend the existing language. The second part, we recommend mostly the
existing language with some changes for an option that no longer is available to the
applicant. Now, coming to the last proffer issue and that is proffer ... look on page 19
and that's a proffer dealing... dealing with... entitled miscellaneous. Now the applicant
has done a couple of things here. You see that he has added in the blue language and
it's basically should any provision or portion of these proffers be declared by any
Virginia or federal court of competent jurisdiction to be invalid, the same shall not affect
the validity of these proffers as a whole or any part thereof other than that which is so
declared to be invalid. Basically it is adding severability clause that if for some reason
one individual proffer had a legal problem, that the whole rezoning isn't then in a bit of
a pickle. That is something we put in some other rezonings, so we don't have any
disagreement with that particular language. Now, there are some things that we
disagree with. If you will see, at the bottom where they have struck out the reference to
Section 15.2 -2303 of the code of Virginia. Again, we would recommend that the
language be restored. We think that refererence is important to us. We think it is
something that could help us avoid perhaps legal issues in the future. Without
compelling reason to delete it, we would recommend it be maintained as typical in our
proffers. So, if you take a look at it overall, we really only have a few issues. They are
big issues ... you know the school capital facilities contribution ... they are the AADPs.
That's a little less big, but we would like to have that reference to the county to be in
there, and then finally, it's just let the proffers reference the enabling statute that we
operate under. When it comes to the concept plan and the changes with the buildings
and the uses, that we do not have any disagreement with. So, one thing for you all to
consider when you are looking at a rezoning and these are some things that are in the
ordinance and they are consistency with the town plan, including but not limited to land
use compatibility policies. Land use compatibility policies are okay, but we do have a
few other things ... one thing you adopted a proffer guideline for school capital facility
contributions. We want consistency with any binding agreements with Loudoun
County as amended or any regional planning issues as applicable. The concern here is
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COUNCIL MEETING December 13, 2011
that we do have the AADPs. I think parties have disagreed as to are they in effect, what
effect are they. The county and we may disagree, but the point here is when you are
acting and you have this type of language that says we are to be mindful of those things,
I think it behooves us to be mindful if a change would effect what someone could argue
is a binding agreement. When it comes to mitigation of traffic impacts, accommodation
or anticipation of motor vehicles etc. We have no disagreement here. They built
sufficient road improvements. Compatibility with surrounding neighborhood and uses.
Again, we think that the application as a whole certainly meets those standards. Finally,
provision of adequate public facilities. Our concern there would be the school capital
facilities contribution. So, what that gets us to is our recommendation. We have
recommended that proffers be revised as you see in this strike through. Again, you can
tell what we agree with and what we don't. We would say that if the proffers are not to
be amended... after all proffers are voluntary and the applicant may say these are the
proffers that we must have or these are the proffers ... here we stand, then staff would
recommend denial of the application for the reasons we discussed in this presentation.
That's all I have to say and will be certainly here... and Chris is available to answer any
questions.
Dunn: I think I'd like ... is the applicant going to present. I'd like to hear the applicant
and then ask questions of both, if that's possible.
Martinez: (inaudible) ... impact that ... or it doesn't. It's in landbay C.
Boucher: It's on page 12?
Martinez: Page 10 ... no page 12.
Boucher: Did you say workforce housing?
Martinez: No active...
Boucher: They still have active adult units. They are not asking to change the style of
unit. What it would do is they would not have to make any contribution for active adult
units under the school capital facilities contribution.
Martinez: Now, you also mentioned something about if we don't collect, the county is
still requiring that collection. Do they go collect from the applicant or are we
responsible for that money if we don't?
Boucher: Because this is a rezoning in the town and the proffer is in the town, if the
town amended the proffer, the applicant could argue that he is free of the obligation and
our concern is that if the county was going to go after anybody and I think the town
attorney can jump in if I am incorrect... would be the town. They would say you had an
obligation under the AADPs ... there was an existing proffer, you all created it...it was
something that benefited us, the county, through our Loudoun County Public
Schools ... you all amended it, so the developer is free of it ... I think the party they may
have a concern with is the town.
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COUNCIL MEETING December 13, 2011
Martinez: So, it's our responsibility to collect those?
Boucher: Under the existing proffers, it is our responsibility to collect it.
Martinez: Question on the proffers. You say it is going into the school capital facilities
fund. Are those earmarked for any construction of schools in Leesburg, or is it for the
County?
Boucher: The way the actual resolution reads, they are to spend those on facilities in the
Town of Leesburg and I think the way the County answers that is given the amount of
schools that they are building and maintaining in the town of Leesburg, that on a yearly
basis they are going to spend that money in the town.
Martinez: So, this is not for new construction, this is for schools that are already
existing and being constructed?
Boucher: I think it can be for new construction. I might need to just double check the
resolution to be 100% sure. But I believe it can be for anything.
Martinez: The reason I am asking is that we, under the annexation agreement, fulfilled
our requirement for schools, correct?
Boucher: The number of schools, yes.
Martinez: Okay, so is there any reason why we would be collecting money for the
county to construct new schools in the town? Do you see...
Boucher: I see what you are getting at. The money shall be used to provide school
related capital facilities that will serve the Leesburg residents who live in the new
development resulting from the rezoning. That's what the language actually says.
Martinez: So, it would be for any schools that need to be built in the Village at
Leesburg.
Boucher: No, I think the students don't necessarily live in that subdivision. I think it
would be used and they are normally applied to schools that are serving... if there is one
not actually built, they are serving...
Martinez: I understand... I'm just being a little ... you know. But ... and so, this last
question is going to be a kind of loaded one. Okay, collecting these fees, capital facilities
fees for schools. It's not something that is new. It is something that has been done
before, so other applicants who have come this way have done that and our not
collecting them should have been a flag to them to have come back and find out why.
And did this applicant come back and say, hey you are supposed to be collecting these
fees. Why aren't you collecting them? Are you exempting us because of the regional
improvements we made in transportation?
21 1 PagC
COUNCIL MEETING
December 13, 2011
Boucher: The applicant did not say we think that you are owed this and you need to
collect it.
Martinez: Did they question at all whether or not ... why they weren't collected?
Boucher: Not at that time... Not until the zoning administrator sent them a letter saying
he believed they owed the money. Then, I think, from that point is when dispute has
arisen as to whether or not these were actually owed under the proffers.
Martinez: I'm just trying to figure out where all this is going and I think that the
complexity of these proffers and stuff, I'm not sure where we should go with that
tonight. I'm still in doubt.
Boucher: If I may just add one thing... remember there is kind of two parts. It's money
that is collected, which we can dispute, but the applicant is saying that they shouldn't
owe any monies in the future and they were asking to change the proffers tonight so that
it's not an issue and they would in fact not owe any monies retroactively or in the future.
For school capital facilities.
Martinez: Thank you. I appreciate your...
Hammler: I wanted to say thank you for your report. I actually thought it was a great
way to present the complexities of all the amendments, things that you agreed with, did
not agree with. So, I really appreciated the time and effort in terms of the color coding.
I really just had one minor question because I am looking forward to the applicant's
presentation. What was the reason the Planning Commission specifically stipulated nail
salons not being allowed? Not that I go to nail salons, I'm just curious.
Boucher: I think it was because they felt that given the quality of the center, nail salons
sometimes had a tendency, I'll be frank, to be tacky, to be unattractive. They thought
that might detract from the center overall.
Hammler: There was no issues with KSI?
Boucher: The applicant was fine with it. The applicant said that was probably the type
of thing they wouldn't allow there anyways.
Hammler: Okay. Just was curious. Thank you and look forward to the next section of
the presentation.
Mayor: One question either for Mike, Brian, or Chris. I know the Planning
Commission recommended approval of the concept plan amendment, but recommended
denial of the proposed proffer changes. Does the Council have a way of following that
guidance tonight and separating those two issues out?
22 [ <l
COUNCIL MEETING December 13, 2011
Boucher: One thing about rezonings is it is tough to conditionally approve them. It's not
like a special exception where you can add conditions. Applicant's, since proffers are
voluntary, have to agree to do certain things. So, you would say in that case and based
on our understanding of conversations with the applicants that it would be ... I think
tonight is ... I hate to say kind of an all or nothing. Either you approve it all or you, if
you don't think the proffers are in shape, then we are talking a denial.
Mayor: Okay. Alright, we will go now to the applicant. Mike, do you have a
presentation?
Michael Banzhaf: Thank you. I'm Mike Banzhaf and I have with me a representative
from Cypress and also from Carlyle. Cypress Equities and Carlyle are the partners in
this. They have Landbays A and B, primarily. Jaime Williams is there with the red tie
and Mark Rone, you have met before from Texas. Mark is going to talk about the design
elements and what I have been calling the on the street changes, which Planning
Commission supported and staff supports and we think they are a good idea and they
are fiscally positive for you and generate tax revenues and it's a win /win. We don't
think there is any real issue with that. Mark will speak to that. I am going to talk more
about the proffers and why we propose the changes. This, again is A and B, not C.
Charlie Keeler has something else to do tonight. He can't be here, but in any event, his
piece is not part of this. What we are really talking about is a credit for the $2.6 million
for their A and B, not really C. C is not part of this. They are not the applicants, these
guys are. I know it is confusing because there has been a lot of applications. By the
way, we really appreciate your support in these last couple of years moving things along.
It has been very helpful. The theatre was able to get approved and is up and operating.
LA Fitness is a real asset. I go there. It is a wonderful facility. There are lots more
restaurants that we all can use, I guess, at this time of year. It has been a good
experience and we are really pleased with that and hopefully this one could be a good
experience too. I didn't really anticipate that there would be such a push back from
staff. This is not a new concept. Credit is often given for these kinds of things in the
county and it has been given in the town for years. I have been around here long
enough to observe it. I don't know if any of you were here with this happened, but
when Harper Park got approved and the Potomac Station in the town, that's where one
of the middle schools came from ... the Harper Park Middle School came from that
dedication. Some portion of that was a credit against County capital facilities. At the
same time we were processing a zoning in the town, we were processing the Potomac
Station piece in the County. So, we paid fewer dollars in the county because we
provided a school site in the town. That's just what happened there. Also the
interchange... this very same interchange. If you look at the western 7.5 acres dedicated
for the interchange came off of that land, that was Harper Park, that was dedicated by
the town for this regional facility. Over on the county side was another 7.5 acres that
went to the county for that and that dedication, that land, that credit went to capital
facility payments. So, not a new idea. That was back in the 90s we did that. There
were also requests, then as there are now, under your town plan, as a resolution 97
something, which was cited by the staff... it's in the staff report that basically says we
encourage you to provide for regional transportation facilities and we have certainly
done that in spades with this application. The interchange is more than their fair share.
23 �����
COUNCIL MEETING December 13, 2011
In fact, I can't think of another application in the county even that has provided this
much of an improvement, except for Cascades many years ago. One Loudoun did that.
They got a credit for their interchange, which hasn't yet been built. Arcola Center down
at 606 and 50 did that for half sections of roads that weren't warranted for them.
Kincora did that because they are going to build a bridge across the Broad Run ... since
they do that and provide extension specific, they get credit for that. Not a new concept.
So, when I wrote the resolution in these proffers, I said there were two parts in proffer
ten. One was under the resolution 2005 -111, which is the subject of this whole thing
that basically said that we will comply with the resolution. I didn't say how much we
would pay or if we would pay anything. What I basically said is we will comply with it,
because I knew at the time that I wrote it, that the county gave credit for these kinds of
things so we assumed that there would be a credit given. In fact, in 2009, I asked for a
zoning determination that credit was warranted. That was outstanding in April of 2010
when we got this letter from the staff and Chris saying hey you have paid everything.
Obviously when I wrote the request for a determination and I got a letter back in
April... on the 14 " of April, 2010 that said you have paid, we thought we are finished.
Certainly, these guys thought they were finished. With that letter, they then went off
and got the financing for the theater and LA Fitness, which is no mean feat and it cost
them a lot of money and they got loan applications and they went off and marketed the
335 units. The reason that letter came back as clean as it did is because the payments
have been made for the AADP thing, so we disagree with that and the building permits,
the zoning permits, the occupancy permits, all 335 of them from the county and the
town have been issued. Usually, in fact the state statute requires, that is when you get
your money. If you don't get your money for the state statute at occupancy permit, you
don't get your money. I gave to Council men Hammler, to all of you actually, a copy of
Cuccinelli's opinion that says just that. It's not maybe. It's that's what it says on it's
face. So, we think it can't be collected legally under the state statute. So, rather than
fight about that in court, when I was talking to Jeanette about this time last year at the
BZA, we said let's just come back to Town Council and discuss this. There ought to be
a way to provide credit for this. We think there is a reasonable way to work this out.
And so that's what we did. They had these questions about landbay Q and landbay X
and the frontage buildings along Market Street. So we said oh lets throw this all into
one thing and we will go forward. So, the on the street issues seem to be okay. The
proffer issues don't seem to be okay. So with that preamble, I'll introduce Mark Rone
and Jaime can speak to how they responded to this when that letter came out in April.
He is the guy that had to go to the lenders and talk to the lenders. You know, the
lenders ... you can imagine trying to keep the lenders happy in these last four to five years
with the market being as flat as it is. They are very anxious to have things happen here
and you are too. The tax revenues that flow from this, I think they told me just the
13,600 square feet we are talking about for Q, just the percent of revenues off of that per
year is like $80,000 just per year for that. And you get meals tax, a percent of those and
I don't know what all you get, but you get a fair amount of money from this project. So,
its hopefully a win /win and we would like to keep it that way if we can. I can go
through ... I will go through ... I just got this tonight too. This mark through, I find it
frankly more confusing than helpful because I thought what we did was pretty simple. A
lot of the things... people can differ what the language means, but we can talk about that.
That's not hard to fix most of the time-it's just like you know, it's not a big deal really.
24� Pt c
COUNCIL MEETING December 13, 2011
Certainly referencing the state statute 2303, I can do that. It's not a problem and some
of these other things... should it say it should run ... the AADP money should run to the
county, well fine. I don't care ... it can run to the county, it's okay with me. I don't
really care about that. I was just trying to clean it up is all I was doing so if you want it
not cleaned up, that's alright. Anyway, I'll give you Mark Rone. Thanks.
Mark Rone: I am Mark Rone with Cypress Equities and I am going to discuss three of
the very specific items that I am going to chase. Michael as he has stated before, is
much more suited to talk about the proffers than me. If we can, I don't know if we can
enlarge this or not enlarge this? What I am going to talk about first, and not any specific
order is ... as everybody has stated tonight, we are proud of this center. We are very
proud of this center. I know you all are too. I have heard from each and every one of
you. I have heard from staff, you all eat out there, you shop out there. We are amazed
at how well it turned out. You all... you know I have been up here before in front of you
all. You helped me with LA Fitness. You helped me with the theatre. You helped us
with this project as a whole. We are asking for your help again tonight. One of the
things that is important to us is related to pad Q. Pad Q which is Crosstrail of course,
and Russell Branch, as staff had stated before, it was originally supposed to be office.
We would like the opportunity to build, but like they said 13,600 square feet of
retail /restaurant there. We have opportunities right now and those opportunities are
strictly waiting on tonight and see how things go tonight. What we have done, staff did
not request it, but we felt like we would do it just like we said we have done
everything... we have done everything we said we would do on this project and I think
staff will support that. One of the things that you will notice in this particular plan, this
is the 13,600 square foot retail /restaurant on that corner pad. We have upgraded the
landscaping more than what you see out there today. So, if you drive out there today
and look at this plan and take them side by side, you will notice that we have added
more landscape to this area. Staff had a concern about the back side. We have
upgraded all four sides of this particular building. Staff showed you the black and white
version. Here is the colored version of it. That's a four sided upgraded building, single
story. One of the things staff asked us to do was add more features to the back, which is
what I will call the Crosstrails side on the hard corner. We have turned that into glass,
brick, epheus materials. Similar to all of the buildings that you are seeing out there
today. We are following the same format as we did on all the 21 structures that are out
there now. So, one of the things that we did ... if you will notice on the back side of
that ... which is the far lower left hand elevation, that is the backside. To the right, you
will see the parking deck which is right there were Wegman's and all the retailers use.
One of the things that staff asked us to do is to look at... and they have stated before
about the trash enclosure. We relocated that at their request and it didn't bother us one
bit. We told them we are more than happy to build that thing as nice as anybody wants
it to see. One of the things that we did add is a lot more landscape. I am a big
proponent of landscape and I think it makes the site look really good. You will notice
we have added more trees, shrubs, everything... all the way around ... down through
Russell Branch and around Crosstrail Boulevard on the hard corner. So, what we are
asking for tonight, so we are 100% clear is that it currently has been approved for office
from 2005. We are asking you to approve 13,600 square feet opportunity to build retail
restaurant there. I am going to take the office component of it, which was 36,000 feet
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COUNCIL MEETING December 13, 2011
and I am going to go put it on what is called pad X. So, the office isn't going away, the
footage is just shifting to a different site. That is pad Q. This is pad X. This is where it
will be a standalone office building... five floors. As noted before, staff has supported
this. Planning Commission supported this. We do need to make a correction. I think
Michael you said it was 53,000? Actually the total square footage is 55,440. I want to
make sure that is corrected and cleaned up. The reason it is 55,440 is because when you
are building the additional 13,600 square feet of retail and restaurant, you have a ratio
you have to maintain and I am maintaining that ratio by putting it on pad X, so the total
is 55,440, so we need to make that correction in staff's report. On building X, one of the
things that we ... you notice that we have a corner piece what would be to the left of the
building, which I think is to the west of the building. You will notice that I have added
additional landscaping. That little triangular piece, which is right in front of the parking
deck. You can't really do a whole lot with that. What I wanted to do is add a lot more
landscaping... kind of a meandering path that you see down through there. Benches,
tables, seating to create an outdoor environment so people who are in the office building
during lunch hours or whatever they can come outside and sit and eat and do that type
of thing. That is something we wanted to do. Staff didn't ask us for that. It's just
something we felt like we wanted to do. But overall, we have upgraded all the
landscaping around the thing. It also helps block the parking deck. While it's a nice
parking deck, got some brick on it, not everybody likes to look at parking decks. So the
building helps screen that parking deck. The added trees and landscaping helps to screen
that parking deck. The office tower people will use that parking deck. That's where
they park, just like everybody ... if you have been out there, we all park in the parking
decks. So on this one, this is Pad X. We are asking you tonight to approve the
additional footage, which is 2,040 additional square feet above what was approved on
the original 2005 concept plan. That thing was allowed to build 53,400 on the original
concept proffered plan. We are asking for the additional 2000 and some change to get it
to the 55,440, so that's Pad X. Here is another elevation of the back side of Pad Q, if
you are interested in it. Let's see here. Let me go back. The third item that I am going
to discuss is the three condo buildings. You all are familiar with them. They face Rt. 7.
What you probably don't know is that they have been on the market for two years. We
are only 40% leased in the office market on this particular project and those three
particular buildings, each building is 10,000 square feet, approximately 10,000 square
feet, we have two tenants. Dr. Bravo and Dr. Mullen are the only two. They are in the
building closest to Wegmans, if you drive out there. The rest of those buildings set
empty. We have tried everything from rent negotiations, build it out for them, lease it,
sell it. We have marketed these things for two years trying to do something with these.
We do need what I call the accessory uses that Michael has talked about previously, the
bank without the drive in facility, things like that. We are asking you to support our
cause tonight and grant those accessory uses in order to help us market those condos
better so we can get some more tenants in here. At the Planning Commission, you will
know that Dr. Mullen did come and speak to the Planning Commission, did support us
in that, because he knows it affects him as well because he wants to see more office and
office accessory uses in that facility. The only way I can get there is having you vote
affirmative to allow those accessory uses on those three particular condo buildings. I
don't know if you have any questions. That's the ... they have covered the bulk of it
related to the three items I am requesting for tonight. Michael can talk all night long on
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COUNCIL MEETING December 13, 2011
the proffers, if you want to. So, if you have any questions. Otherwise, I am going to
turn it over to Michael Banzhaf and let him go for it.
Dunn: I think most of what we are going to have will have to do with the proffer issues,
but ... I think that the planning commission, I think the issue was much how we feel
about banks in Leesburg as there are just too many nail salons. Frankly, I don't want to
see any barbers in there myself, it's a personal thing.
Rone: We are actually not requesting that, but...
Dunn: I jest. But do you really feel that these extra uses will help with your...
Rone: Absolutely. In the past, we have actually asked Mr. Murphy at some
opportunities ... can this particular vendor go in here? Can this tenant go in here?
Because originally back in 2005, it was labeled strictly office and it was proffered on the
plan as strictly office, it did not allow us those opportunities. Those opportunities are
still there. In order to make those opportunities move forward, I need the change. But
they are there. They have been there in the past, we have just not been able to do it
because of the way the proffer was written on the concept plan, which strictly called to
be specifically office. B -4 already allows everything we are asking. We are just simply
asking for it to be allowed on our particular project as well because of the way the proffer
was written in '05.
Dunn: How is the percentage of rent in the other parts of the development? The other
commercial locations?
Rone: I'll give you ... the 40% related to office is overall. When you take 30,000 square
feet of those three condos and what is it 5000 of it is rented? That is pretty poor in
percentages just for those three frontal offices there. Retail I am 74% leased. All the
apartments are full. We are ... I think everybody is aware the economic environment
here related to office ... not just in Leesburg, Loudoun County, everywhere is extremely
flat. It has been flat for a long time. We are like a lot of people. We are trying avenues
to try to encourage the leasing of the office. We always want to sell those condos. We
will lease them, if we need to. Our preference is always to sell the condos, because that
is what they were designed for. For us, we just need your help. We have got to be able
to have some other opportunity besides strictly office.
Dunn: Just real quick. Your concept ... your rendering here. There isn't any parking in
front of those buildings, is there?
Rone: There is parallel parking in front of the buildings, but just like this, it is no
different than the boulevard you have walked down so many times. This site is designed
for parking decks, so you essentially park in the parking decks. Each one of those
buildings has access from the parking deck up to the sides of those buildings.
Dunn: Great. Thank you.
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COUNCIL MEETING
December 13, 2011
Reid: Are we going to look at the proffers now, or just talk about this?
Mayor: Well, I mean at some point we are going to get to a vote potentially, but...
Wright: He is asking about the uses...
Mayor: You can ask Mr. Banzhaf anything about the proffers, if you want.
Reid: But he is coming back to talk about this?
Mayor: If you ask him, he will come back.
Reid: No, I'll wait. Thank you. Oh, I will ask this question. How much square footage
is vacant right now?
Rone: Office wise? Jaime, do you have a feel for that? Jaime has the numbers in his
head. I don't.
Jaime Williams: My name is Jaime Williams. Officially, I am James S. Williams, but I
prefer Jaime. Since I have not been before you before, I am representing the Carlyle
group which is one of the partners. We are the equity partner within the Village at
Leesburg and my address is 12839 Potomac Overlook Lane, Leesburg, VA. So, to
answer the question, we have about 225,000 feet right now of roughly the million square
feet in the total project that remains either unleased or unsold. That is ... I can share
more now, but that is a significant portion.
Reid: Can you give us an idea of what's this costing you to keep it vacant like ... having
it vacant like that?
Williams: Yes, I'll share. There are several figures that I think make sense. Perhaps the
best way to think of this is what is the project data currently. I think the math will
probably speak for itself, Council Member. The project costs in total are about $250
million between all the partners. There is about $190,000 in a loan, a construction loan
on the project so that means that there is about $60 million, $70 million worth of equity.
The total project costs are about $250 million. If you say that 25% of the project is
unleased, that is about 25% of the value. Another way to think about that would be with
tax revenue ... the real estate tax revenue and the assessment that exists right now. The
assessed value for 2011 is about $123 million and I am rounding the numbers, so please
if I am off a million or so then please don't hold me to that, but that is the assessed
value. The debt on the project right now is $190 million. The cost we have in the
project including the debt is $250. So, when you ask the question, what is it costing us,
those figures speak for themselves. I think another relevant question you might ask is
what is it costing the town because the town benefits from the real estate tax revenues,
the sales tax revenues, from the restaurant revenues, if you will. To the extent those
parts of the project are not leased, it affects all of us. I am also a resident of this county
so I figure it probably affects me in some way too, in that fashion. I hope that is a
complete answer to your question. I am filled with all sorts of numbers.
28 1 Pa be
COUNCIL MEETING December 13, 2011
Reid: I guess I was looking at a monthly cost for the empty space that it is costing you.
Williams: If you said that 25% of $250 million ... what is that number?
Reid: 50.
Williams: What would you figure a reasonable return is on $50 million on a monthly
basis. Well, expectations vary. If it was 10 %, it would be $5 million a year, I guess.
Reid: Okay, thank you.
Wright: While I am greatly looking forward, as you said, Mr. Rone, talking about a
proffers all night, while the land use items are fairly clear and I don't think have
generated as much concern and staff is okay with them, they are bundled with the
revised proffer statement. So, while you are happy to defer to Mike to talk about them
all night long, I guess my question is do you all have a desire to see those proffers be
amended as highlighted and is that a critical part of your application?
Rone: You are correct. I understand from Jeannette that it is all or nothing. I am kind
of surprised by that. I don't know the laws. Planning Commission was able to carve out
and approve the three items that were important and the proffers, of course, they voted
no on. I don't understand the difference and maybe Mr. Banzhaf can reiterate that, but
for us tonight we are looking for some mechanism to get this whole thing approved. I
am not sure how we all get there, but that's what we are looking for tonight, a vote ... an
affirmative vote on the whole thing. If we can carve out these items as one piece of that
puzzle and the proffers as another piece of the puzzle in some form or fashion, we are
happy to do that.
Wright: Because the challenge before the Council and I am sure Mike and staff will talk
about as we go through and talk about the proffers for a while. I am not planning on it
being all night... since you have a proffered rezoning, your proffer statement is part and
parcel to the rezoning. So, whatever we vote at the end of the night to approve, needs to
reflect our approvals of... since proffers are voluntary, you lovingly and willingly give
them to us. Whatever proffer statement is either before us or amended, has to be agreed
by you guys for us to be able to accept the rezoning. That's why planning commission,
they do great work, but all they have to do is recommend and you have the intervening
time, if there are recommended changes to the proffers, you have the opportunity
between the time of planning commission recommendation and us seeing it to sync up
the proffers, whereas if we accept it tonight with the proffer statement as written that's it.
Unless we note the amendments and state it on the record that everybody is good.
That's where you see that slightly different reaction of how we can act than you will see
at the planning commission. Thank you, sir.
Martinez: Well, I have no problem on the ordinances changes to change from office to
other uses. I do have an issue talking about the proffers tonight. I think that is
-- something that we need to carry further on. We need to have a really deep discussion
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COUNCIL MEETING December 13, 2011
with the county and the town and the applicant to talk more about how we are going to
resolve that issue. But I think that's where I am at right now.
-- Hammler: Appreciate section two of the presentation. I will just focus a couple of quick
questions on this aspect. So, Mr. Rone, you are mentioning accessory uses as relates to
the Class A office. So, what percentage, and can you just give me a couple of examples
and I bring that up specifically as it relates to I visualize this as a tremendous
opportunity for a business to locate in a mixed use center, which by definition has
wonderful, in fact some of the best accessory uses like a Wegmans which has been the
great selling anchor for the development. So, what is the exact percentage relative to
what would be subtracted from Class A that will be accessory? Just some examples of
what you will be seeking?
Rone: You mean what examples I am looking for in those three particular buildings?
Hammler: yes.
Rone: What I am looking for ... you are talking about the mail facilities, the banks
without the drive through, the special school instruction type of thing. You know, the
photography studio... things like that. I think Michael Watkins actually lined it out
verbatim the way we had asked him to less the nail salon. So, everything that Michael
listed in there even the ones that require special exception, which we fully realize some
of them do require special exception, those are the ones we are looking at. To be exact,
it's travel agency, photography studio, mailing and printing services, you know the
�v special instruction schools, the bank without the drive through. That type of thing. That
is really what we are seeking because those are opportunities that complement the strict
nature of the word office.
Hammler: I appreciate your bringing those out for the record. I have had several
meetings, which I will be disclosing formally. I appreciate all the background and time.
Again, I also don't have any issues relative to helping to make this as successful as
possible. I think you have seen we have been real champions for you on an ongoing
basis as it relates to your challenge filling the Class A. As Mike knows well, it has been
my champion issue since I joined the economic development commission with Leesburg
but just so you know, there certainly is specific experts in the rental market out here, the
office rental market if you will, in Leesburg, because I have asked the question over and
over again relative to what is this costing the town and how can we get this office filled.
We all care very deeply about helping you to be successful. Some of the specific answers
at least I get back is in fact you have been holding out quite frankly with rents or
ultimately prices that right now the market can't bear but that there would be if you had
more flexibility with being willing with some of that elasticity of demand price points
that we probably could try to get that office filled. I know you specifically stated to the
contrary, but I just wanted to share that with you because we are here to help. There are
so many resources. I literally brought this up with a lot of business leaders as part of our
economic development commission as a key challenge in Leesburg. So many strong
leaders in the whole region would be very, very happy to get involved to help you be
successful with the Class A.
30 1 Page
COUNCIL MEETING
December 13, 2011
Rone: That is appreciated. I mean we absolutely will listen. We are trying everything
we can to get this thing leased.
Hammler: I appreciate your input.
Butler: Thank you, Madam Mayor. No questions at this time. Thanks.
Mayor: I would be very supportive of the on- the - ground changes that you want to make
and the additional uses you want. My concern and I stated it to Mr. Banzhaf and Mr.
Williams and Mr. Keeler earlier today is unless we can bifurcate the on the ground
issues from the proffer issues, I don't want the taxpayers of Leesburg to be at risk for
$2.6 million should the county decide that if we are not going to collect it from you, they
are going to go after us for it. That is my main concern. If I look at the staff report that
we have in our packet, the staff report recommends approval of the on- the - ground
changes, but has issues with some of the proffer amendments. I would be happy to vote
tonight in accordance with the staff report to approve the on the ground changes, but not
to accept some of the proposed proffer changes. So, that is where I am coming from. As
we discussed in the meeting today, I suggested that Mr. Banzhaf go to the new board of
supervisors... we vote for the on the ground changes tonight. We don't approve any
amended proffers. We go with the staff report recommendation and give you time to get
from the new board of supervisors their agreement that the county doesn't want us to
collect the $2.6 million or the $5.2 million or whatever it is deemed to be in hopes that
the new board would want to be business friendly, as business friendly as the Town of
Leesburg wants to be. But, what I am getting from Mr. Banzhaf s presentation is, I am
getting the idea that it is all or nothing tonight. I was hoping we wouldn't have to
combine both of these issues, that we could just keep the proffers in place as they are and
get you what you need on the ground, but what I am hearing tonight is we will either
have to put the taxpayers of the town at risk to the extent of some million dollars if we
are to help you get the changes you need or we can't give you anything you need
tonight. That bothers me and I am going to have to decide that I cannot put the
taxpayers at risk to the tune of millions of dollars. I don't want to be in that posture and
if you all could agree to fight the proffer battle at a later date and we could go with the
staff recommendation, which is approve what you need on the ground, but not approve
the requested proffer amendments, I would be happy to vote for the staff
recommendation, but right now I feel in a bind that I am being asked to put our
taxpayers at risk and that I can't really do with a good conscience. Anyway, if there
are... if our staff want to address the issue, or Mr. Banzhaf wants to address the issue, it
would probably be helpful.
Irby: I am going to address it real quick. With respect to the all or nothing issue,
Mayor, the reason why it looks that way is because there are proffers that don't affect
this concept plan amendment that they are requesting to change. So, staff supports any
proffer amendments that will help effectuate the concept plan amendment. What staff
does not support is the additional and at this point, and I know it is not gratuitous to
them, but it doesn't help them get their concept plan moving forward with respect to the
changes in proffer ten. Staff has reportedly held out since the beginning other than
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COUNCIL MEETING December 13, 2011
removing a condition preceding that has already happened with respect to proffer ten,
leave it alone and then we can go forward. We have discussed on more than one
discussion the 15.2 -2303 and all this other little stuff that Mr. Banzhaf says is now not a
problem but of course makes it difficult now to sit here and have to start amending
things on the fly, which none of us wanted to do. Again our position is, if this is what
they are proffering and we have to take it all, we can't recommend that we take it all. If
their position will be more accommodating than that, they can have their concept plan
amendment and any proffers relating to that concept plan, we are fine with. Leave
Proffer ten alone. I can address, at some other point with respect to the county, they are
present this evening. They are monitoring the situation. The county is of the opinion
that it takes a joint action from the town and the board to change the obligations under
the AADP with respect to the enforcement of this proffer. I can certainly answer any
additional questions, but I will give Mr. Banzhaf an opportunity to speak as well.
Banzhaf thank you. A lot of questions have been floated out here. Let me start with
the ones you have posed today. After we met this morning, we talked about and heard
your concern about the liability and we are... at least I am confident enough in the
position of the town and the general precedent that I have talked about before to say
that ... I haven't put this in the proffers, but you could put it in the resolution, we would
agree to defend the town in the event that you had litigation that came as a result of this
approval. I can speak to that, there is a statutory provision or 15.2 -2285, that basically
says any action or challenge has to occur within 30 days of the action to approve, so we
would say all right, if somebody sues to challenge this to say that wasn't a good thing to
do, we would agree to defend you on that. So, I don't think there is any risk to the
taxpayers. Of course, I didn't put that in the proffers and we didn't discuss that
previously, but when we talked about it and thought about it, I feel good about this
legally. 1 think it's the right thing to do. I think it is consistent with what the county has
done for a long time. I think it's consistent with their plan and yours. I don't think you
are out on a limb here. I think you have that authority to do that. We talked as this was
going along whether you had to do this. Well, you don't have to do anything. You are
the legislative body. The 2005 -111 resolution gave you the opportunity to do that. It
said here are guidelines. We are going to use the county's guidelines. All we said, is if
you are going to use their guidelines, their guidelines allow for credit. You could have
credit too. That's all I am saying.
Hammler: May I ask a specific question as it relates to this central issue. It's really not
even just, I think, a legal argument in terms of defense. It's a net dollar value that I think
has been anticipated by the county as it relates to the operations, in this case, of the
schools based on a capital facility that has been interpreted based on an approved, if you
will, plan. So, to the extent that just ... and we had a very lengthy presentation last
Friday, for instance, within the county about the number of houses that have already
been approved that are going up by right. Well, by definition that's when the school
system starts determining what the costs are associated with the development that's in
the pipeline. I guess I simply would add that to the issue. Is the original interpretation
of the way that the proffers are originally written is not an inconsequential issue for the
broader tax paying community, which is in fact, if you will the town taxpayer, who is a
county taxpayer.
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COUNCIL MEETING December 13, 2011
Banzhaf. I fully understand that and when I wrote these proffers, what I said is we
would comply with the resolution. As I said earlier when I was up here, when I asked
for a determination in 2009, I said the capital facility payments aren't due because they
built $44 million of interchange and other improvements. Now, mind you some of those
are needed for them, but not $44 million worth and the fact that the staff report itself
says about $23 million is more than was required and our traffic study indicates
that ... every time we have a traffic study since the first one, the traffic counts come back
and they go gee, you have way more capacity than you need. You have helped the
network a lot. If you recall, and so do I, there were two signals out there. They are
gone. There is an interchange. There is a flyover. It is a great facility they built. It
helps, you know, if Lowe's wants to come along and put in their facility. It won't get
approved unless they have this interchange. They can't get out. They have to be back
on Battlefield Parkway. That's a regional facility and that goes all the way back to the
AADPs. The AADPs in 1982 showed an interchange right there. And the county plan
showed an interchange right there. And your town plan showed it too. So, when you
came along and the annexation was resolved in 1983, there was a comment about, and
you quoted... somebody, I think Brian quoted out of the AADP, hey it was your
obligation to take care of proffered plans. That's because there had been zonings
approved in the area that was annexed. So, the county wanted to make sure that the
town didn't walk away from those obligations. There were several proffered obligations
and it basically imposed on the town the county's prior ability to do that because you
were now the zoning and planning authority. So, they said you have to pick up where
we left off. That's all that meant. It doesn't mean that the county has any jurisdiction
here because as of 1983, they didn't. They relinquished that. You annexed it. It is your
power, your zoning and planning department, not the county. So, this whole thing
about they expected... it's warranted, it's due. Frankly, if they were willing to pay us
some portion of the interchange, they the county, that wouldn't be a problem. But they
are not. They want these guys to build the interchange and pay money for capital
facilities. That's not the way the county works it. You figure you need to enforce their
guidelines, you shouldn't do that either. I understand that the county staff, and certainly
Jack Roberts is going to have a different point of view about this and all we are saying is
if it comes down to that and somebody wants to challenge you legally, we are there. We
feel that good about this that we will stand up behind you on it. As far as bifurcating
this, as you mentioned, I asked Gray Haynes who has been doing this kind of thing a lot
longer than I have. He is one of my partners. I said hey, can we do this? I looked at the
state statute. Jeannette and I looked at it today. Under your proffer statute, 2303 or any
statute, basically says when you make a proffer that has to be accepted, just like when
you do a dedication of a street, it has to be accepted. Unless it's accepted, it's not
binding. And the ad here had seven pieces, seven things. Revised uses for buildings Q
and X, revised the building CC, DD, EE and so forth. Of the seven, we are in
agreement on six of them. The only issue is this credit thing, which we think is a good
idea and consistent with the guidelines that are to be implemented. We think it is
warranted. We have written the proffers that way and signed them that way. This sheet
that was handed out before the meeting tonight, it is helpful, but I can't stand up here
and make those changes. I mean I am not the owner. I can't do that. So, what we have
before you is proffers we signed and the changes I made, I hope were pretty simple. I
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COUNCIL MEETING December 13, 2011
was trying to clean things up, basically. One of the clean up items, for example, if you
look on page 17, I changed under the AADP language, to clarify that these guys, the A
and B guys have paid their money. They have paid their amount for the AADPs.
Before it said it was going to be 2 million and something in change. Something like that.
But as I think it was pointed out, if landbay C, if Kettler comes along and they do less
than 300. They do 160 like they are proposing, then it won't be 2 million. So, I don't
want to have that 2 million number sitting out there. What I want to say is these guys
have paid theirs. Any more units will have to pay their share. That's all I have tried to
say here. So, to me it is just a clarification. We can go back to the other and we can
argue about it when Kettler comes along. The rest of it is really pretty straightforward.
There are two changes. One is to ten, which basically says we have complied because as
you noted in your proffer E, our proffer E, which you have accepted, there was credit
given for the town plan requirements. What we are saying is if it was credit worthy
there, it is certainly credit worthy here. That's all that is. Those are the changes. The
rest is sort of wordsmithing things. Frankly, we could do that after the fact, if that is
okay with you. You could say, you know, just like the planning commission, we are
okay with these ... I keep calling them on the street, because they are physical
improvements ... we are okay with that so long as the applicant and the town staff can
work out proffer changes not inconsistent with that. We can do that. That works out,
but I can't do it tonight. Ordinarily in this kind of situation, we would ask for the matter
to be continued, but I am not sure that is appropriate either. I don't ... I guess I
respectfully disagree with the town attorney that you can do this in pieces. I think you
can, if you want to. I have seen the county do it all the time. They have accepted A and
not B. They do that all the time. We have also had over in the county letters of
clarification ... things after a public hearing. You know, we agree with all this, but we
have changed that. It's like an errata sheet. This, that and so forth. I am sure we can do
that.
Mayor: So your position is that it would be legal for the Council and you and your
clients would not object if we accepted those proffer amendments that are consistent
with the changes you want to make in building use on the ground, but we do not accept
at this time, with this vote, the other proffer amendments.
Banzhaf. Of course, we think it's a good idea. On the other hand, there is no sense on
holding up things that we agree upon, so if you can vote on those and we can work on
the others, that's fine. Maybe it comes up with Kettler, I don't know if they do that or
not ... because they are not here and I can't speak for them, frankly.
Irby: I just want to clarify the process. I did look at that language today with Mr.
Banzhaf. I made a couple of other calls and calls that I received from my outside
counsel and another land use attorney was I have not seen it done this way ... wouldn't
recommend it. I realize you have received different. I had asked Mr. Banzhaf, are you
aware of this being done before and he couldn't come up with something off the
top ... so, I don't want to be only in Leesburg again at the Supreme Court with respect to
this issue. We have had that opportunity. If Mr. Banzhaf is saying we can sit down
here and go through this document... take a few minutes and agree what we would agree
with and he wants to provide revised proffers by a date certain, with respect on Friday,
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COUNCIL MEETING December 13, 2011
and you pass this so long as we agree to these revised proffers, that would be a letter for
clarification situation. I think we can do that, but what we cannot do, or what I don't
think we can do is under 2303, accept the on the ground changes and defer Proffer ten.
That is completely different than agreeing to what these proffers are going to say and
getting the signed response back on Friday. To my mind, they are two different
processes.
Wright: So, if I can ... before we get into what we want to do, if we can get back to the
meter issue and I am going to ask a bunch of questions and my goal is to get as many
people to stand up and answer them as we kind of go through the process. So, this has
been an ongoing debate since I think I was on Planning Commission. Are the AADPs
still applicable or has that agreement's necessity expired?
Irby: It is the town's position that at the time the original ... I'm sorry ... it is the town's
position that at the time that proffers were signed, the AADPs were applicable.
Wright: Let me get a clarification.
Irby: Okay, then in 2009, it's the town's position that they are no longer going forward
because the town was able to ... the moratorium on city status terminated for the town
and so we believe that they are no longer applicable, 2009 going forward. The county's
position is that they are still in effect.
Wright: Okay. So when we say these were signed, we are saying the original proffers
that are trying to be amended, not obviously the ones that were signed prior to this
public hearing.
Irby: Yes.
Wright: Okay. The proffers we are talking about in proffer ten ... there is actually two.
There is the school capital facilities proffer and then there is the AADP proffer. The
proffer agreement is with the town of Leesburg, so is the proffer to the town for payment
to the county or is the proffer to the county? Nobody is racing to jump up.
Boucher: Because it is in the town, we collect the money but the money is earmarked
for the county.
Wright: So the zoning authority and the administration of the proffers is therefore to the
town.
Boucher: It is to the town with the understanding that it will go to the county.
Wright: Understood. If and actually this relates to my question ... if we talk about E7 in
it's original language... at the time of the zoning approval, we by accepting or however
this worked, there was a calculation for the transportation improvements, I assume in
the staff report at that time and we said look they are building all of this, so we don't
need another check. What did we give credit for at that time and do we know ... I think
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COUNCIL MEETING December 13, 2011
the number we have talked about as far as total transportation improvements that were
done were $40 some million dollars, a portion of which was required by them and a
portion of which would be considered regional.
Boucher: I think the $40 some million might be a little bit new to me. I was more down
in the $30 million range, but anyways...
Wright: Inflation is awful.
Boucher: What we did in the original rezoning... there were a lot of things going on at
the time. But we have a regional off site road contribution in Appendix B of the Town
Plan. When you put their uses in there and came up with the number, I believe it was
over $7 million. But we did look at the interchange at that time. It hadn't been
constructed yet, so it was kind of guestimates as to its value and I believe it was in the 20
some millions and we did think that was more so we said they are actually doing more
than the Town Plan recommendation for off -site transportation contributions. So we felt
it was enough that we didn't need, as you say, a check because they were actually doing
construction.
Wright: Okay. As you're ... if we were reassessing this today and doing the math as far
as we, the Town of Leesburg, as the zoning authority if you were writing the staff report
today, as far as the transportation improvements that are on the ground now... so we
have the interchange... we have got the full interchange with however many lanes there
are...
Boucher: We could give them half credit for Russell Branch Parkway and half credit for
Crosstrail Boulevard.
Wright: Okay, what would be the credit on the interchange?
Boucher: That's a little more difficult. I don't know that I could give you a ready
answer on that, but it would still be a substantial figure, but I don't think it would be full
credit.
Wright: Alright. In our memo, which I don't remember if it was here or when I went
digging in the planning commission staff report, the county has basically... hasn't talked
to you about how or what they would give credit for... how the county has calculated
their credits. But do you guys have any insight of how does the county calculate credits
and would it be different than what you just described to me? Noting the county staff
person has yet to leap up.
Boucher: As part of this ... because I will say one thing ... Mr. Banzhaf says that when
you adopted 2005 -111 you adopted all the county guidelines. Staff disagrees. I think
when you look at the terms of that, you see it was the focus of this one. I would also
argue that if we did, then I guess we should be applying all the other capital intensity
factors that the county has, which would be substantial for residential units. But we
don't do that, so anyways this time we did, actually even though we don't believe the
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COUNCIL MEETING December 13, 2011
council adopted those guidelines or gave staff the authority to apply those guidelines.
We did send it over to the county and asked them will you apply your own guidelines to
see if there would be any credit given. And Rody, who has the worst, most
unpronounceable last name and I always screw it ... so we will go with Rody. I am not
even sure he can say it, actually. He was the one who actually wrote the referral and I
think as far as how the county applied it, I think he would be the one to answer those
questions.
Wright: Okay, so here is my issue and we will see if it gets the County staff up or not.
We had another rezoning before the town and we were seeking the school proffer. And
for the benefit of everyone because I pulled it out, the resolved section of this resolution
from 2005 is the town will use the following guideline for evaluating proffers. Facilities
for proposed rezoning including amendments ... blah, blah, blah, blah, blah. It gives the
amount for single family. The amount for single family attached and the amount for
multifamily. It talks that the amount only applies to the delta as far as ... so if there was
existing housing allowed, it is only to the delta or the increase in housing and that any
proffer money collected would be used for school related capital facilities to serve
Leesburg residents who will live in the new development resulting from the rezoning as
defined by the County's Leesburg Planning Sub -Area or appropriate school
board /school cluster designation. That's the meat of it. So, it kind of leaves out
there ... the Council will evaluate the guidelines. It certainly doesn't say we are going to
collect money for other social services or anything like that. But, when we sought to
encourage these guidelines to be voluntarily proffered by another developer, we were
actually asked by the Loudoun County Board of Supervisors and I don't know if it was
by two representatives on their own, or formally by the Board to not accept that proffer
and rather in lieu have that developer do a road improvement on...
Mayor: Fort Evans?
Wright: Not Fort Evans ... but the missing link on Riverside Parkway. Citing ... and they
cited numerous examples where the County has accepted transportation improvements
as payment or satisfaction of the capital facilities costs to include schools. So the
challenge I am having is recent history tells me the County will accept regional
transportation improvements or even other transportation improvements as an offset
against capital facilities costs including schools and I have a memo from the County
saying well no we won't in this case. So, I guess that's what I am trying to reconcile.
We are worried about how the county will respond and I have conflicting information
from the county as to what they would do, but yet I also have the zoning authority, so
part of it is the county saying to me that it's up to me to interpret what credits I would or
would not apply. So that's what I am trying to resolve. Well, hang on. Before I get
you, if I can get County staff to speak to it, I would love for them to unless they are not
in a position they can speak to it this evening.
Banzhaf. It is usually bonded improvements. That's how we do it. Or cost of land by
assessment.
Wright: Rody is never coming to a meeting again.
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COUNCIL MEETING December 13, 2011
Rodion Iwanczuk: Sure I will. I get to come to the Planning Commission meeting on
Thursday night, as a matter of fact. First, I would just like to clarify specifically that we
are talking about two wildly separate payments. The $5.3 million is the school capital
facilities under the town resolution 2005 -111. That is payable to Loudoun County
Public Schools not Loudoun County government. The AADP payment is the $2.1
million.
Reid: I thought they said it was $5.3 total?
Iwanczuk: $5.3 is the...
Wright: There are two proffers that exist. There is the school proffer and the AADP
proffer.
Iwanczuk: The $5.3 is as the town has adopted the county's school capital facilities
guidelines.
Reid: Plus $2.1?
Iwanczuk: The $2.1 would be under the AADPs payment, calculated for inflation from
1983 dollars. What ... as I wrote for the County planning staff our comments dated June
6, 2011. The applicant is incorrectly stating that the county's capital facility guidelines
are requirements to be enforced through compliance with town resolution 2005 -111.
The guidelines are policies intended to provide direction for adequate mitigation of
capital facility impacts. As such, the town is under no obligation to credit any school
capital cost /profit contribution against transportation expenses. As they go on to say,
these are payable in any case to Loudoun County Public Schools and not to the county.
Wright: So the county's statement ... I think I'll get to what you just said, but if not, hit
me. Your statement and the staff report is, the town is not obligated to provide a credit.
You are basically then outlining the facts of this money goes to Loudoun County Public
Schools for the construction of schools.
Iwanczuk: Correct.
Wright: So, you didn't opine on what credit you would or would not give on this
particular proffer because it's based on guidelines and a town resolution and not
something the county would opine on ... is the vibe I am getting from that.
Iwanczuk: Yes. And elsewhere it's the board's policy on an individual basis. If this
were in the county, it's the board's policy on an individual basis whether they would
provide such credit. It's not in every situation.
Wright: Okay. Does that get to your point?
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COUNCIL MEETING December 13, 2011
Martinez: Well, I just wanted him to reiterate that statement that you can't use ... can
you say that last statement that you did? That you mentioned, that you were reading?
Iwanczuk: That the town is under no obligation to credit any school capital costs?
Proffer contributions against transportation expenses.
Martinez: But the county can.
Wright: No. because I think your statement is at least as it relates to that particular
proffer, the county would make determinations for land use in the county ... what they
would or would not credit and I believe your statement is ... correct me if I am wrong
because I don't want to put words in your mouth but your statement is, you have this
resolution that adopts these proffer guidelines that relate to schools. The money would
go to schools. It is the county's opinion that you are not under an obligation to give
them credit and it would be...
Martinez: Based on the board...
Wright: Well, I don't think ... so is it ... well what I think Marty is trying to say is it
would be based on the ... the Board of Supervisors would tell us if we would give a credit
for regional transportation for schools. I think what you are saying is ... hey as a
planning professional looking at this, the town doesn't have to give them a credit. It's
your resolution... it's your zoning authority.
Iwanczuk: As we were looking at this, we are noting that this interchange
improvement... the overpass... without it, the Village at Leesburg would not be a viable
project.
Martinez: That might be true, but they could have still only built two lanes instead of
four. So, I guess one of my questions are does the county ... what would the county
expect that overpass to cost and did they go above and beyond and how much do you
think they went above and beyond what they needed to provide just to make their
development work?
Iwanczuk: We made no calculation especially dating back to 2005/2004.
Wright: And I think what you are saying is from a zoning determination standpoint, the
zoning authority is with the Town of Leesburg. The Town of Leesburg doesn't have to
give a credit. What you are not saying, but exists there is if the Town of Leesburg were
to give a credit, it would be based on our assessment of the conditions.
Iwanczuk: yes.
Wright: Then, while I have got you up here ... just to clean up everything so folks don't
get lost ... your statement on the AADPs is the AADPs are due. They should be
collected and they should go to the county... don't redirect.
39 1 Pa
COUNCIL MEETING December 13, 2011
Iwanczuk: Yes. That would be for capital facilities that the county provides... mental
health facilities, correctional facilities, fire and rescue although there is, I believe, a
separate proffer in the Village at Leesburg proffers for that, but just a whole host of other
facilities that the county provides in this area.
Wright: So in general, the intent of the AADP payments ... and I will get an answer from
our side as well, but the intent of the AADP payments are meant to offset capital costs
for development that exceeds what was anticipated in that development area?
Iwanczuk: Correct. This planning area of the annexation... planning sub area of the
annexation area did not include any residential units so the 635 units approved exceeds
by 635 units those numbers originally planned.
Wright: Okay. Did those AADP payments and I am sure they are not close to what
they would need to be but, would those capital costs have assumed at the time of the
AADP agreement, were those capital costs also assuming schools?
Iwanczuk: No, to the best of ..from my understanding of them.
Wright: I am done torturing you. Thank you very much. Question to...
Martinez: If I might, before you get rid of...
Wright: Well, I'm not getting rid of him...
Martinez: Absolving him of...
Wright: I might have increased his blood pressure, but other than that...
Martinez: If I am hearing right, Kevin made a comment that said that we can make the
determination about giving a credit... transportation credit, the town can through their
resolution? But that does not absolve us from making that payment that you feel that we
owe you?
Iwanczuk: Correct. The $2.1 million.
Martinez: So in other words, if we say...
Wright: Hang on. What he just clarified though is the $2.1 AADP payment, not the
school payment.
Martinez: So, what's the other $2. what mill?
Wright: So you have the school dollars which I think Rody has said there's your
calculation, it's your resolution, but the other thing that he said is you have the AADP
dollars. Those need to be collected...
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COUNCIL MEETING December 13, 2011
Martinez: Because those are for other things than schools.
Wright: And please remit the check to the county.
Martinez: Right, but if we were to give them a credit for the school, we can do that but
my question is we can give the credit but does that absolve us from the payment to the
county? Is the county going to just say hey if you want to give them the credit, you are
going to have to take the $2. whatever million out of your own pocket, or will they
acknowledge that or will they accept our...
Wright: We have the $2.1 million in the other proffer.
Iwanczuk: That would be a payment that...
Martinez: Okay, so now what we are trying to do is get the AADP payment figured out.
Wright: Hang on. Brian, I need you. There are two things sort of being debated. So
let's go to the AADP payment. The only thing that was being debated on the AADP
payment is there was a ... the proffer statement struck the word county. Beyond that,
they are paying the $2.1 million or whatever the calculation is per unit.
Boucher: Right. And you can discuss ... you know sometimes Mike is saying he is just
trying to make it not complicated. Leaving it the way it is, is if you don't...
Wright: Mike is now seeing how he made it complicated.
Boucher: So, there is that and under the proffer, the way it reads the obligation for the
$2.1 million is still there.
Wright: So what is being debated is the school proffer and whether or not we have the
ability to opine that the improvements were made or credit worthy to satisfy the
transportation improvements which the proffers already say as well as the school proffer
based on the resolution that the town adopted. And I believe what I heard Rody say is
the town is under no obligation to do that under any guidelines, but absent from that the
town is also under no obligation to not make a determination, is what I heard.
Boucher: One thing, again to clarify. We can talk about did you adopt the full county
guidelines or not. Staff's position is no. But as council that really doesn't matter when it
comes to you doing a proffer analysis and deciding whether or not you want to give
somebody credit for something. Forget the ... that's almost a red herring. Just forget it.
The point is if the Council felt that in this case there was enough compensating, let's say
in the proffer package, compensation enough that the school capital facility was
absorbed or be given credit for, you can do that. One thing that staff cautions though is
because there is this existing proffer. Mr. Banzhaf can tell you what he believes the
AADPs mean, but if Mr. Banzhaf is wrong, there will be a lot of us sitting in court
discussing it should the county disagree and I think what we are hearing from the county
is they may disagree with our interpretation of how the AADPs apply. What staff just
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COUNCIL MEETING December 13, 2011
wants to reiterate is you can always give a credit, you can. You don't need any
guideline from the county to do it as part of your proffer negotiations. You can use your
wits and decide what you think is the appropriate thing to do. But in this case, there is a
complicating factor. It is an existing proffer. It is a proffer where we think some money
should have been collected but hasn't. There is money to be collected in the future.
Should it go away, it's about $5.3 million. Should the county think that's $2.6 million
that should have been collected and the $2.6 million for the 300 units they haven't built
yet, that the proffer currently as it sits applies to. If there is a dispute over whether that
under the AADPs or any other reason that was over at the county, it could get very
complicated.
Hammler: I'll just be brief. The briefings that I have been privy to have focused on a
key word which is the word interpretation. The word credit has not come up. There has
been discussion about how to interpret the statutory requirements based on whether
money was collected at a certain time and a determination of that. It is a very different
discussion relative to now a council determining that there is going to be a credit. I
would like this Council to focus on the word interpretation based on staffs report
relative to all of the actions that have been taken up until now. I think it will clean up
where we are right now and help us move forward.
Martinez: If we were to accept your recommendation, does it impact the proffers? Does
it negatively impact what we have already approved previously? It just cleans up some
language...
Boucher: If you accept what the staff is recommending?
Butler: The blue language.
Boucher: the blue language is acceptable to staff. What that's doing is changing the
proffers to accommodate really changes in buildings Q and X, changes in uses we are
not disputing.
Martinez: So, my comment here is as you can see by Kevin and I's grilling of the county
and everybody else, this is not a simple thing that we can truly vet tonight. So, my
suggestion is based on the resolution, we accept this. We accept the amendments with
the caveat that somebody from this council, somebody from our planning department,
the applicant and the county need to sit down and truly vet out what we are going to do.
Because I think right now, I still got a ton of questions about all the different agreements
and what we can and cannot do. I know that our planning department does not have all
the resources at their fingertips so they can ask ... go get the information. So, my
recommendation is that we stop the discussion on the proffers and we move forward and
get those zoning changes made so they can move forward on theirs and that we accept
this language as is.
Mayor: So, you would want to accept basically the staff report recommendation to us
which was give them the proffers they need to change what they have got on the ground,
but don't accept any other amendments to the proffers.
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COUNCIL MEETING December 13, 2011
Martinez: Just accept the ground changes.
Irby: But they have to volunteer those. We can't accept something that hasn't been
volunteered.
Martinez: In other words, they have to come to us and say that they are okay with this.
Butler: But they have already volunteered the blue language. It was their language.
Wright: They have to volunteer to omit the other language.
Martinez: So the bottom line is if we say okay, we are not going to change any language
in the proffers we will go ahead and just approve the changes and we will talk proffer
language later.
Wright: So what I am hearing from the grumbling from my colleagues because I did
have a couple of other questions on the proffers, but what I am hearing and I think I am
going to put this question... so I'll skip some of those because what I am hearing from
the dais is I don't know there is four folks willing to sort out the proffers because I think
we have the authority to sort them out because the AADP dollars are not at risk. The
main item is clarifying those AADP dollars go to the county. The question for the
Council is based on the total value of the regional transportation improvements that
were done that were in excess of what was required for the application, would we think
that is fit for granting the transportation improvements. I had another set of questions
based on what was originally proffered, but what I am hearing is I don't know that
Council is willing to pursue that discussion so I think the question goes to the
applicant... are you willing to volunteer a set of proffers that omits the changes to E7 and
X and puts back the staff recommended language in the very first paragraph of the
proffer statement and the miscellaneous paragraph of the proffer statement because I
think that cleans back up to where staff wants to be. So, I'll stop asking questions and let
them think about it and let someone else ask questions but it is my opinion that we could
have sorted out the proffer issue.
Butler: Just two items. Sure, I think we can sort out the proffer issues. That will take a
little bit of time. I am not particularly interested in doing it tonight because I think the
real question on the table is why would it be in the town's best interest to accept fewer
proffers, less proffers, than what had originally been agreed to. I am not sure we have
heard a good answer to that other than well, staff made some mistakes and we are going
to sue you and collect it anyway... and not have to collect it anyway, but I am not sure I
have heard a good reasoning for that either. So, it would be a tough hill, I think, to
climb to have me ... I'd need to be convinced that it was in the town's best interest to
accept less money and I am not sure I am ready to do that at this point, certainly. The
other point is we already have an agreed set of proffers and zoning and all that, so I
would be more than happy to move forward and approve the blue language and if the
applicant isn't interested in it, they don't have to sign it. Thanks.
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COUNCIL MEETING December 13, 2011
Dunn: I guess for the applicant or maybe staff might know this, why through all this has
not the applicant gone to the county to ask for the credit?
Hammler: Somebody said they did or somebody said the county did.
Banzhaf. The county's vote doesn't matter. You have the power, they don't. It's an
interpretation of the proffers we gave to you. I can't go to the county. There is no way
to do that. There is no vehicle for me to do that. They have no planning and zoning
authority here. So the complication of this whole thing is your 2005 -111 resolution
which basically says we are going to use the county's guideline when interpreting
proffers. Before that resolution, the town never collected money for capital facilities,
you just didn't do it. That's why the county asked all the towns to do it. I would argue
that the town, though, unlike other towns paid it's fair share. I mean, you all provided
the school sites and you have more facilities in the town here than they have any other
town. I think you have done your fair share and I think these guys have too, but could
we go back to the county and say hey give us a credit. No, there is no authority there.
Dunn: I guess you have done a great job in getting with us prior to now. Why couldn't
even asking the board off line what their position might be as far as...
Banzhaf. I could, but it really would be legally irrelevant. They could ... nine of them
could say it's a great idea. We think it's consistent with our proffer policies of our own
and so forth and so on, but I don't have to ask them that because they already adopted
it. Their general plan has guidelines. Their general plan allows credits. I mean we
already talked about what happened in Harper Park and Potomac Station ... Rody has
said as much. He didn't know the dollar amounts, because that's not his department.
He wouldn't know those sorts of things, but normally when we go to the county, it
depends on the value of the land. Like the interchange land we gave ... that 7.5 acres.
That depended on an appraisal of what it was worth. If you are talking about what the
value is of the deck and the road improvements, there were bonds that we put up and
they were released, thankfully. But when you do your estimate, you get costs from
people who build these things and they say, it costs this much. And the traffic study we
did early on said well you need to have certain access ways, but you don't have to have a
full interchange. Certainly there is at least $2.6 million worth of credit. The number
that keeps being floated out here is $5 million. It really isn't. These guys are just A and
B. $2.6 million is all we are talking about and that's it. They have already paid the
AADP money. That is really not at issue and all I was trying to do is say that in the
proffers. I really don't want to gum it up here. It is paid. You have it somewhere or
you gave it to them. I don't know where it is. But they don't have it, they paid it. We
are not saying that Kettler won't pay it. They agreed to pay it. That's not a problem.
They have also told me that they don't have a problem paying capital facility charges
when they come along. So, we are only talking about $2.6 million because that's all
that's at issue tonight. A and B. That's it.
Dunn: My next questions go to more of the legal eagles here. That is the town has been
given charge of...basically stewardship of the county's funds. Why then couldn't it not
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COUNCIL MEETING December 13, 2011
be that the town is also given and it sounds like through this no obligation that the town
is also given the ability to decide whether those funds are credited or not?
Banzhaf. Again, there is two issues here. The AADP monies came back from a
1982/83 agreement and it says whatever it said. Those monies have been paid and we
have given them to and what you do with them is your call. The other is ... again I wrote
the resolution... the proffer said we would comply with the resolution. I didn't say we
would pay the money. I said we would comply with the resolution and so when you
look at those guidelines, I was thinking you would... someone would look at the county
guidelines and you would have a credit given because it is a big interchange. It is credit
worthy. In fact, the existing proffers say that because you said it was credit worthy
under your own town plan, so it just seemed to make sense to me to do that. Now, as
we are looking a this sort of 20/20 hindsight, we could have written this more clearly
back then in 19...2005. Didn't so the language is what it is. The language says what it
says. Katie is right to talk about an interpretation of it, but I think the correct
interpretation is to say under 2005 -111. They are guidelines. It says that it is a proffer
policy. You have the power to interpret them because you are the legislative body.
Dunn: Well, I think that is really the key issue here ... is our ability to interpret what is
being with county funds because they have given us the authority to do so. In essence,
they have made us not just collectors of the funds, but a body that can determine
actually what is being done with the funds... that as far as going to the county and also
giving credits.
Banzhaf. Excuse me for interrupting. I think the Resolution 2005 -111 basically said we
are going to use your guidelines. We, the town, are going to use your guidelines and it
did not say anything beyond that. It said if you use them, here is what the numbers will
be. It has so much for singles and so much for multis and so forth. It is also possible to
have credit for those payments and that is all we are saying if the interchange more than
meets that requirement. When Kettler comes along, it will be a different day's
discussion but for these guys, they have paid.
Dunn: Do you know... the legal eagles here... of any case law or other examples in the
state at which towns or entities that were operating in a situation such as this that
extended county funds in the form of a credit?
Banzhaf. I have never seen ... there are only two cases I know of and they both turn on
where a proffer was demanded of somebody, it wasn't voluntarily given and the
developer sued to challenge it, basically. Rinker is one case and ... you don't need to get
into all of these cases and what they said but that is the only one I know of. I don't of
any situation exactly like this. I don't know if it has ever come up in this town or any
other town. It is a guideline. It's just like in your own proffer plan guidelines.
Dunn: So what it really comes down to then that the town, if we are to get into some
type legal issue, does the town is not just a collector for the county, but now we can be a
creditor for the county in theory and do we have the right to do that.
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COUNCIL MEETING December 13, 2011
Banzhaf. I think you have the authority to interpret your own resolution. I think that
the guidelines provide flexibility for you because you are a legislative body. I think the
interchange that you obtained through these proffers is credit worthy for the county as
well as the town. I think it helps... again, one fourth of it is in the county. It certainly is
beneficial to the county and the state, too. Everybody drives by here and has benefited.
I think the credit was given.
Dunn: I would also mention too that there have been situations much like with
Meadowbrook. We did take a road. We didn't ask hardly anything else of the
developer. So there have been situations where we have not required additional funds
for things other than just getting a road. I am kind of reminded of the parable about the
three servants, one given 10, one given 2 or one given equal number of funds ... one got
10 back, the other one got 2 back and the other one buried it. Well when the master
returned, he congratulated the two who made profits and the one who just buried it ... I
tend to see the Town of Leesburg in this situation where we should act more like the
ones who did the proper investment, not just buried it and said okay we can only serve
as collectors for the county but we also have the ability to make certain decisions as far
as credits. So I tend to agree with your position that we do have the ability to credit.
Banzhaf : That you have that power.
Boucher: Can I make one quick clarification because I think it's pretty important. At
least understand the sums you are talking about. The sum that is at issue here should
this proffer change ... this is the proffer regarding the school capital facilities... it is $5.2
million. In fact, it is $5,286,735. If you look at page 4 of the staff report, you will see
the calculation taking 635 units and just simply doing the multiplication. So that is the
figure that would no longer be .... the applicant would no longer be liable for should you
give him credit. I am not quite sure ... I think Mr. Banzhaf s client has one half of that.
There is still another half. We don't distinguish between clients. It's the total. So, if
you look at the calculation, it is $5.2 million. I think that's pretty clear. Then you have
got an additional $2.1 million, which is the AADPs. But the $2.6, that's maybe what his
client's obligation is, but these proffers if you change them, you are changing them for
both of the owners here and it's $5.2 plus.
Mayor: So, Brian, just to clarify we are changing $7.3 plus million none of which has
been collected?
Boucher: No. If you take it ... let me break it just to clarify. We will take the school
capital facility first. We believe we should have collected $2.6 million. We realized our
mistake and that's a dispute with the applicant now. Not the AADPs. School capital
facilities. Now, on the AADPs. We are not disputing that. The applicant has paid. He
has got 335 dwelling units. There was an AADP payment for that. We have collected
that. So, we and the applicant are in agreement. Mr. Banzhaf... $2.1 is the total. We
have collected $1,114,000. There is still $38,000 still outstanding. That's for the 300
dwelling units that are on landbay C that haven't been built yet. But the obligation to
pay the AADPs for those units not yet built is still there. So, again two different
proffers. One school capital facilities. It is $5.2 million total. The other one is the
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COUNCIL MEETING December 13, 2011
AADPs and that's $2.1 million of which we have collected $1,114,000 and change. On
the other one, we think we should have collected half of it. We haven't and that is what
we are disputing with him.
Mayor: Okay, thanks Brian. We are back to Katie and then we have got Kevin and we
have got Ken and Tom you can go after Ken.
Hammler: I will try to be brief. I will reiterate what I said earlier. What has come
forward tonight is an interpretation from staff which I fully support. Ultimately, that's
the main question in front of this council. Is an amount of money that is due based on
an original set of proffers based on the original plan ... the only thing I would like to add
right now is a comment and then a question, almost in relation to the earlier point that
Dave made about collecting the money. I worked very hard in 2005 to get a fourth vote
because I strongly believed in this development and the economic impact and the
regional benefit of having you here. Part of my decision, in fact was all of the additional
amenities that were in those exact proffers, which were significant and I am constantly
touting them. To me, it's an amazing, wonderful, tremendous decision that this council
was willing to make at a very difficult time back in the history of residential
overdevelopment... anything with an R in it was not something that anybody was going
to entertain. So, to me where we are right now, is staff has now interpreted exactly what
that council approved and we were willing to approve with fortunately a fourth vote.
So, I completely understand that we are in different, difficult economic times. I
appreciate Jaime, everything you were pointing out. I think for the sake of the public it
would be kind of interesting from a quality of life perspective if you are willing to answer
the question if you in fact given the interpretation of staff to night which is that money is
due based on the proffers that were originally submitted ... I know that you have had to
go back based on your interpretation to get an additional loan. Does that mean that you
will go bankrupt? Does it mean that certain facilities that are part of KSI, the Village of
Leesburg will no longer be amenities to the town and the region? Would you be willing
to comment on that? Because otherwise to me it's very straightforward that we have
interpreted based on what had been presented and approved legislatively and at this
point it is probably better to pursue a third party interpretation of what has already been
approved legislatively and that is the course that I would certainly bring forward as a
motion, which is approving the staff report as presented tonight. I don't know if there is
any response relative to what is the actual... because otherwise the taxpayer will in fact
be picking up whatever it is. We can call it a credit, whatever we want to call the fact
that it was previously legislatively approved and it has been interpreted to be something
that will be coming to the town, but now we are reviewing this as it relates to some
significant impact relative to what will happen to a development based on your having
to fulfill that requirement based on our interpretation.
Williams: I think the way I would answer that, Katie, is that if you were to look at our
projections that began in 2005 when we became involved in the project ... if you were to
go through all the budgets and everything else that has been sent... that has been
represented /warranted to investors and banks, you would find those monies, those $2.6
million that we are talking about was not included in any of those. If you would look at
the application that was made at the time we were entertaining adding the theatre to the
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COUNCIL MEETING December 13, 2011
project and look at all those documents, you would see that we rep'ed and warranted
based on what we had been told by the town that everything had been paid. So, had we
known what would be different? There may not have been a theatre, I don't know. I
would like...
Hammler: Given that there is, is it that the return has simply been pushed out. The
return on investment is now going to be ... you don't even have to give specifics but the
return will be 3 to 5 years instead of 1 -2 or is the theatre going to close? Anything like
that could interpret the importance of crediting versus...
Williams: The theatre is not going to close. The theatre is going to do fine, I believe. Is
this a hardship that is being put on us that wasn't expected? Absolutely. There is no
question about that. How hard is that hardship? I don't know. There are financial
ramifications, there are legal ramifications to us when we make reps and warranties to
our investors and our lenders.
Hammler: I think that is the crux of the situation is just like we have to make those
same warrants to our taxpayers based on our interpretation of what we approve
legislatively. I think that is where the stencil is probably going to be, not that we don't
completely appreciate and support the importance of not only the benefits of the specific
retail outlets and the potential to bring class A and so forth from an economic
perspective, but otherwise it's a bottom line to the taxpayer relative to what we
interpreted originally. I appreciate that.
Wright: Brian, and or Chris or anyone on staff. Do you have the original language of
proffer ten in front of you?
Boucher: Well actually... really when you go back into here it's...
Wright: So the check me, because this is what I understand Proffer ten, at least the
relevant paragraph says. The applicant agrees to comply with town council resolution
2005 -111 by making the payments required under said resolution. The payments shall
be made at the time of receipt of zoning permits for residential units developed on the
property. In the event that prior to the issuance of the first zoning permit for a
residential structure to be developed on the property, the Board of Supervisors of
Loudoun County determines that payment of capital facility charges for active adult
units is not required and /or provides a credit against payment of capital facility charges
for provision of regional transportation improvements, then to the extent such proffer
relief is provided, the payments under resolution 2005 -111 will not be assessed or paid.
Is that the original proffer language?
Boucher: Yes.
Wright: It is staff s opinion that that language where we talk about the Board of
Supervisors making a determination was specific to the application? Thus the reason we
are saying the monies are due?
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COUNCIL MEETING December 13, 2011
Boucher: That was ... let me back up a little bit. That language right there was basically
something that if the County Board did something, they would get a credit. Our
position is that they did not do what this proffer is suggesting. They could do it.
Wright: They did not do it specific to this application.
Boucher: Not even specific to this application.
Wright: They have never did it. They have never given credits.
Boucher: They had a credit system. If you read this proffer it says in the event that the
Board of Supervisors adopts something. They actually already had something in place.
Wright: Okay, so they had to do something.
Boucher: Right, so then it's okay if you are going to do something different and they
have never changed those proffer policies. They could still do that, but...
Wright: Okay, did we ever give that ... because there was a question on determination so
there was the one question of were monies due and I don't want to get into that whole
thing, but Mike had asked a separate question about the school, specifically this first
paragraph I just read. When was that question asked and when was it answered?
Boucher: One of the questions with regard to this ... they changed that. An official
interpretation was given ... I would have to look at the official date. It actually came to
me when I was zoning administrator. What I had done, at least initially when that was
given to me ... it was a very busy time for us. I actually put the applicant off a few times.
What I kind of said was I don't think we are going where you want to go. What
happened is they asked when Chris Murphy became zoning administration ... some
frustration with me, I think, not having asked it. They submitted the question to Chris.
He answered no and he answered within 90 days. The answer that he came back with
was simply that. You are referring to a new policy ... not the one that was in effect at the
time the proffers were approved, but something else and the county unfortunately hadn't
changed their policy since.
Wright: All right. I have no other questions.
Reid: I don't know if this has been asked of you, Mr. Banzhaf, or of you other folks.
Are you willing to sever the concept plan from the other proffers tonight, or not?
Banzhaf. I think we answered that previously. There are seven matters before you and
you can approve what I keep calling on the street matters and not approve the other. I
can't change the proffers as I stand here.
Reid: The Town Attorney then, that's what the town attorney is recommending that
you would have to voluntarily sever it and you are not doing it, right?
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COUNCIL MEETING December 13, 2011
Banzhaf I have not been authorized to do that.
Reid: Okay, then folks since this has been going on and on and on and on and on, I
don't think we can handle this tonight and I think you are going to have to defer it. Of
course, we have to finish the public hearing. That would be my suggestion.
Dunn: I guess it is kind of a related question since we are talking a lot about education
proffers. For the applicant, what do ... do you know what the total number of units are
that you have and how many of them have the ability to provide students to our school
system? The total number of units that you have and how many of them are currently or
could provide students to our school system?
Banzhaf. Charlie Keeler told me today that there are 335 units that are occupied. They
are all occupied and there are seven children in those units. Not of the entirety of it. His
experience, because they build apartments all over the place, Kettler does. This is not a
place where children typically live ... it's an apartment community. It's usually young
people or empty nesters or whatever... usually you don't have school age children. But
at the moment there are seven. He told me.
Dunn: So that's not tipping the balance of a need for a whole new school. I
guess ... how many of the units are multi- bedrooms?
Banzhaf. I don't know that off the top of my head either. He said most of them are
single bedroom, one bedroom units. There are a few twos and very few threes. So,
really it is not a family environment. It was not designed to be that way.
Reid: This is general market, right?
Banzhaf. It is.
Dunn: So we are talking six students, $5 million. Maybe another 30 students. $5
million. That's a lot of white boards. You can get a lot of white boards for that. So
that's a good thing. I guess ... and this goes back to Katie ... your point and I think what I
brought up earlier as the issue is we are making an assumption that the county who has
given us the ability as supreme collector... now are they going to accept us as you are an
okay extender of credit? Just as we are saying that they won't do it, they may very well
accept us as okay we are willing to accept you as a creditor for us. We just don't know
what that answer is. We can say that it is going to cost the taxpayers money, but that is
an assumption. You all are troupers. Neighbors and packmembers of the scouts...
Wright: So, Mike if I can clarify your answer to Council Member Reid, what he had
asked is are you all willing to separate what you have described as the on the ground
changes...
Dunn: He can't.
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COUNCIL MEETING December 13, 2011
Wright: Let me finish the question. Are you willing to voluntarily offer that your client
will amend the proffers to basically reflect only those proffer changes that will
accommodate the on the ground changes and defer the changes that impact E7 and X to
a later discussion?
Banzhaf: I think that we can do that, but I am not sure the town attorney agrees with
me that you can do that. I think that we can bifurcate it as the planning commission did.
Irby: I don't think he is asking if you can bifurcate it. He is asking if you accept the blue
as a package and that bifurcates it, but it gives us a legal mechanism to visit these
proffers on another day as another application or as a separate proffer amendment.
Banzhaf. I don't think they will do that.
Irby: And that's right. I think they have taken that position all along. They are not
going to take out proffer ... they aren't going to restore proffers...
Wright: That's what I am trying to get as a definitive answer because previously one of
the clients indicated they might, but when you answered the for Mr. Reid, you said no.
So, I just want to be clear before Council takes an action.
Banzhaf. I don't have the other party here so it is hard for me to speak on
behalf ...Kettler is not here.
_ Rone: Let me ask in a different way because I want to make sure I am 100% clear.
What you are asking is will we take the items that are on the ground and get those
approved tonight but applicant and staff figure out a solution to the other one?
Wright: No. And Jeannette you will have to correct me if I am wrong. What we are
asking is would you as the applicant who is voluntarily bringing forward a set of proffers
commit that you will voluntarily amend those proffers to only reflect the language that
accomplishes the on the ground changes so staff would get a signed set of proffers by a
date certain that only reflects the site plan changes that are being reflected...
Rone: What happens to the issue of the $2.6?
Wright: That becomes a new application at a different time.
Rone: Okay, that's what I thought. Can I have three or four minutes?
Dunn: Can I ask a question of Council, actually. Or maybe Jeannette. Is there is a
means by which we as a body can approach the Board of Supervisors and ask them what
their opinion would be on us extending this credit?
Irby: The Mayor and I and Mr. Wells were approached by a couple of members of the
Board of Supervisors.
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COUNCIL MEETING December 13, 2011
Dunn: The new board?
Irby: Not the new board and so there would be an opportunity for the new board to
have this discussion. We would welcome that opportunity. We don't know what the
new board is going to say.
Dunn: So there is a means for doing that.
Irby: Sure.
Dunn: That maybe something that we just want to put this... if they are not able to do it
tonight, put this on hold for a couple of months to give the new board a chance to review
it and give us a view on it.
Mayor: The other option is ... Mr. Banzhaf, would you prefer just to have a
postponement of this vote?
Banzhaf. I could see that we had so many proffer changes and so many different
questions to be answered that it would make sense to do that, frankly to continue to
another time. I don't know the composition of the Council at that time because you
won't have Council Member Reid, but....
Hammler: I'm happy to vote and I know Marty would like to vote quickly because he
doesn't feel well but I guess relative to a follow -up question for Tom. Under what
circumstances as a steward of taxpayer dollars would you find it acceptable to not accept
the $2.6 million that has been interpreted as owed to the taxpayers of the town and
county of which we are county taxpayers. I mean under what circumstances is that
acceptable to you?
Dunn: I think what has already been brought forth is the taxpayers have been enjoying
the road system that has already been provided.
Butler: Okay, so to me there are two choices.
Mayor: Let me see if there are any members of the public who want to speak to this
public hearing.
Gigi Robinson: This has moved just a bit from what I had written down as a result of a
few questions. But I think that the town made an agreement with this applicant and
held up its side of the agreement and it zoned it and it allowed mixed use and allowed
some very fine buildings to be built. I expect the other side of that agreement to also be
upheld and I expect building to continue the way it is, monies to be collected the way
they are. The applicant is now back in for uses that further enhance the traffic that was
not expected with the original application. As the town we are not asking for anything
more, but they are coming back in saying well that original agreement, we really don't
want to have to live up to. We really appreciate the fact that you rezoned and you gave
us all this stuff, but we are not willing to pay the price tag and yet when you said here is
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your approval, they were real happy with it. Now we are getting into a classic deal
where the taxpayers either through new bonds or new monies are going to have to make
that up. Remember, it's not just ... it's capital dollars only. It is not just the use money.
It's not operating dollars. It's just capital dollars. That's all we have asked. And we
approved it as a county. We took their capital impact fees and said yes we will take
them. We will establish an accounting system. We will pass them on to Loudoun
County Schools. Loudoun County Schools has taken that money, put it into their
calculations and expects it just the way the county expects its AADP money. I have to
tell you that I don't want to be responsible as a taxpayer either on the county side or the
town side to have to pay either one.
There were no other members of the public wishing to speak.
The public hearing was closed at 11: 05 p. m.
Council Member Butler made a motion to approve TLZM2010 -0003 Village at Leesburg
Concept Plan and Proffer Amendments including the blue language on the proffers. The motion
was seconded by Council Member Hammler.
Butler: I think it comes down to while there has been a discussion of fairness and credits
and all of that, the real point and there has been a lot of discussion about the legal
options and this and that and county and all etc., but I think what it really comes down
to is are we as a body willing to have a headline in the paper that says Council gives $2.6
million to developers instead of schools. I am not interested in doing that unless there is
an ironclad legal reason why we would have to do that. So, I am happy to move
forward with the staff recommendation.
Hammler: I support certainly, Gigi reflecting, I think the important point that I have
been trying to hone in on which is we very much appreciate the benefits that have come
from KSI but ultimately we have interpreted what we originally approved as a legislative
body. It has been further and extensively studied by staff. You have brought forward an
effective way for us to review what has been revised and you have made an important
recommendation and we are stewards of the taxpayer just as ultimately I understand
that there is a misinterpretation of those original proffers based on what might have been
presented obviously to banks which is going to impact our projections and so forth,
but ultimately it is going to be a bottom line for us as county taxpayers and we are
stewards of the town taxpayers who are county taxpayers. So, I fully support what has
been presented by staff.
Irby: Hang on. I'm sorry, I didn't hear the motion, but...
Mayor: It's the blue line. It's approval but with the staff recommended blue language.
Irby: Except that we can't do it that way because that has not been volunteered.
Butler: So, what's the impact if we pass it? Don't tell us we can't because we can go up
here and we can vote and we can approve it. What's the impact if we do that?
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COUNCIL MEETING December 13, 2011
Hammler: Could we rephrase the question, which is how does staff recommend based
on what has been presented to move forward in the way that you are now
recommending?
Butler: I'd like her to answer my question.
Irby: All right, we lose $5.2 million in proffers. We give the check to the county for the
$1.1. The enabling authority is not correct. What else, Brian? I can go through the
proffers and...
Hammler: Madam Mayor, I will withdraw. Based on my interpretation is that staff had
presented a set of recommendations that we were able to act on which is now new
information so I will have to retract my second.
Mayor: Would council like to entertain a motion to defer any action on this until the
next meeting?
Martinez: So moved.
Reid: Second.
Mayor: Moved by Marty, seconded by Ken. Do we need discussion on this?
Wright: Madam Mayor, if there is discussion allowed, I would like to see if we can get
the answer from the applicant of whether or not they were willing to voluntarily offer the
proffers that would accomplish the blue language that would accomplish Dave's motion.
Irby: Not at this time.
Butler: I am still looking for an answer to the question of what is the impact if we
approve the blue language.
Irby: I am sorry. We can't approve the blue language.
Butler: What if we as a legislative body do that anyway in the next two minutes?
What's the impact?
Hammler: May I ask a different question which is...
Irby: I guess you could, but it wouldn't be a rezoning. It would not be an effective
rezoning. It would be...
Irby: So, Jeannette, what are you recommending Council do relative to next steps? You
are asking that we take no action, which is the proffers are as is. Obviously we are not
taking any additional action on the on the ground changes so you are suggesting that we
get an interpretation from the county?
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COUNCIL MEETING December 13, 2011
Irby: No, I am recommending that Council defer. Staff will work with applicant to see if
we can come to some resolution with most of these issues. We are out there talking in
the hall, but I don't have a solution for it to get resolved this evening. All of the
applicants who need to sign this document and come to an agreement are not here. I do
not have all of the people with authority...
Hammler: Then why did we have the public hearing?
Irby: ....to ratify this proffer.
Mayor: Are you guys willing to vote on the motion to defer now? To defer until the
next Council meeting in January?
The motion to defer was approved by the following vote:
Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor Umstattd
Nay: None
Vote: 7 -0
11. ORDINANCES
a. None.
12. RESOLUTIONS AND MOTIONS
a. None.
13. NEW BUSINESS
a. None.
14. COUNCIL COMMENTS
Council Member Martinez: I had a meeting with Villages. Merry Christmas.
Council Member Dunn: I would just say that I am glad to see that Council has
voted for the election date change. I would also remind everyone that over a two year
period this Council repeatedly denied many opportunities for public input, denied public
hearings, voted against efforts to change the elections. No Council member other than
just a couple were suggesting that there be a public referendum on this over that two
year period. They never suggested that the public be involved. They tried to keep the
public out of the process and tried to keep it to themselves as a dead issue. It was only
after that the public referendum became to the forefront and that it was seen that is was
going to be going forward that Council Members all of a sudden became for the public
being involved in this process. In fact, there were Council Members who were running
for office in the recent election and those who were assisting others who were running
for office and actually made the motion to pass it tonight who worked vehemently
against the referendum not passing at the elections. So, it is a hollow cry saying that
they support the public making the decision on this because that was just a political
effort to save ones political skin. The fact that this is also being moved as a non - partisan
race is really just a veil for those who practice their own form of partisan ship and then
want to go out and be able to say that it is a non - partisan race. In fact, most council
55 1 P a
COUNCIL MEETING December 13, 2011
members here actually sought out the endorsement by the democratic party for going in
their election and seek the democratic party to help them in many efforts of getting their
re- election or initial election. So, partisanship reigns and just want to add a bit of light to
that vote that was taken tonight.
Council Member Wright: Merry Christmas. Happy New Year.
Council Member Hammler: Well, after those dreary comments, I will find
something positive. Not yours ... Tom kind of...the end of the year, Holidays are ahead
of us and we are not going to end on a sour note. A couple of quick disclosures ... I met
on the 5' of December. I had a call with Mike Banzhaf and I had my meeting yesterday
with Jeannette with the folks that were here tonight talking about our public hearing that
we spent most of the night talking about. I attended the Jimmy Johns' grand opening,
which was wonderful. I think the Chick -fil -A opening was within the last two weeks,
but I sort of lost track, but otherwise it also was incredible and I know that so many
people are happy about that. Just very briefly wanted to just mention that I did drive
slowly up Catoctin and I think the improvements look great. I think it is wonderful the
way the community has embraced what was a difficult decision. I just appreciate the
fact that we are able to ... one, it really does look lovely but being able to accommodate
the issues on Prince Street, I think were really important. Oh, the sections of Battlefield.
I am really enjoying being able to make the loop around several of the segments. I
wanted to say thank you to Oliver for coming tonight and making the special effort. He
wanted to make sure that you knew that he was going to the Board. He has really been
spending so much time, energy and leadership on that issue. I also wanted to thank
John because he has been stepping in because we don't have a current director for Tech.
Thank you, John for coming to those meetings. Appreciate your support because we are
going to need to get that MOU prepared to bring to Ken for the joint partnership on the
access programming. There are several other things that we will be bringing to your
attention, but before I close with my important remarks about Ken, I just want to say the
town looks absolutely beautiful. I love the poles and all the decorations. I'd love to find
a way to keep those decorated all year long. I certainly also loved the fact that instead of
sirens bringing something urgent or some mishap, it was wonderful as usual having
Santa and Frosty come around with all the sirens. It is so neat to see the two- year -olds
jumping up and down. Just a wonderful part of our community. So, besides wanting to
say Merry Christmas and Happy New Year and all other celebrations before we meet
again, I did want to close by saying Ken, it has been such an honor to work with you. I
have learned a lot about how you can bulldog issues through and you are always
responsive. You are wonderful to get a hold of. You are always there at the end of your
cell phone. You are going to do us proud when you get to the county. We are
absolutely looking forward to working with you. Congratulations on your new role.
Thank you for your service to the town and past several years as Council Member and
moving forward.
Council Member Butler: Couple of items. First, I would like to say that I got
word during the meeting that there was an old barn at Morven Park that burned
up ... burned down. It is completely decimated. People in Potomac Crossing could see
the flames clearly. But there were no animals affected. It was a barn only used
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COUNCIL MEETING December 13, 2011
occasionally during events and such but there is a lot of smoke and sirens and all kinds
of interesting things. I do have a disclosure. I also met with Mike Banzhaf and various
representatives of the application tonight. I will respond to a couple of comments on the
election change. Yes, I was out campaigning against the election change because
everybody knows I disagree with it, but I am glad ... but that's different than saying ... I
am glad that the public chose rather than the Council choosing. That is a significant
difference whether I agreed with it or not. Having nonpartisan elections doesn't mean
that ... legally it doesn't mean that people can't get endorsed by one party or another, but
if we made the elections partisan, then what we would do is if there were say four people
that wanted to run as democrats, we would have to have a primary. So, that would over
complicate things and add yet more elections to the cycle that would not be in
November. We are already going to have at least two or three, so making them
nonpartisan simplifies the whole process and lets anybody who wants to run, run and
they don't need to worry about primaries or caucuses or anything like that. Catoctin
Street, I had to give credit to the folks on Catoctin that they all lined up and they were
the first ones to go down the street. I voted to open the street, but I gotta give them
credit for that. Hoorah! It was a good move. I am glad they did that. The tree lighting
was wonderful. It was warmer than it was last year and it was very good. Of course, the
tree lit on schedule so everybody is happy from Parks and Rec. The parade was good. I
think I recall that there was only one significant non - Christian float that snuck through.
I don't know how staff let that through.
Reid: Say who it is? What was it, Dave?
Butler: It was Council Member Reid and I have to admit, Supervisor -Elect Council
Member Reid. I have to say that with your beard and with your outfit and with your
hat, you looked as much like a rabbi as anything I have ever seen. Well, it worked. So,
anyway there was that. Last, I would say I know there was a dinner earlier today. I am
glad that we were all there. See, I even wore cufflinks on my shirt today so ... and a blue
and white tie for Hanukah. I am glad... and you have served the town well over the
last... what is it? 5 `/Z or 6 1/2,7 1 /2 , 5 1/2 whatever... 5 1/2 years on the town. Even
though you will be everybody here's representative except me, since I am in the
Catoctin... Evergreen precinct .... I will consider you my supervisor and the only bets are
whether we are going to get more emails or fewer but the more communications we
have with the board, I think the better ... the more it serves the town. Anyway, good luck
and congratulations.
Council Member Reid: First, I also want to disclose that I had a meeting,
telephone call, email, everything on this list with the Village at Leesburg folks. Jaime
Williams from Carlyle, Charlie Keeler from Kettler, Mike Banzhaf from Reed Smith.
My last disclosure form, I will hand down. I wanted to just thank John and Mary Frye
for putting together a very nice dinner at the wonderful Cajun Experience. The best
Cajun restaurant you will find other than Tom Dunn's kitchen. My campaign for 2006
started in Tom's office where he cooked jambalaya, muffaletas ... you had King Cake
shipped in from New Orleans and it was really fantastic. He, at one time was thinking
of starting his own New Orleans restaurant and I want to thank you for this plaque. I
brought it with me so we can put it on the cameras. It is one of the nicest
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COUNCIL MEETING December 13, 2011
plaques... probably the nicest I have ever received. I greatly appreciate everybody's nice
comments tonight. The fact that everybody was at the dinner was just wonderful.
Everybody including folks I have actually clashed with on occasion. I will not identify
any names... all of us ... right. It is not like I am going anywhere. We are going to work
collaboratively. I hope that we will do so. It's a new board. It's a new school board
too. I think that's very important. I hope that we will all get a chance to meet the new
folks that are representing you on the Board of Supervisors. I look back on a lot of
accomplishments over the last 5 '/z years... getting Battlefield Parkway opened, Sycolin
Road paved to Ashburn ... the Water park, the dog park at a reasonable price. Just so
many things that were done... streamlining our regulatory processes. That is one of my
proudest things that we have done as Council and it is actually getting a little boring
because I say to my colleagues, you have got to look at what Leesburg is doing. If you
want to do restructuring ... if you want to do reform ... just look at what our Town
Manager, John Wells, and staff have done. I think tonight with this situation with the
Village at Leesburg... the fact that the staff was very, very willing to deal with them on
this situation, I think shows. Just an amazing sea change that we have seen in this town.
I would just like to leave with some suggestions on dealing with some current issues
because one of the things that I think I brought to Council was a sense of a reality check.
Being a journalist, I am always focused on facts and so forth. I think that the way we
are headed in a lot of areas, we were looking more at pie in the sky stuff. I am glad that
we didn't do the town hall expansion, which of course happened under the previous
Council. We reshaped our economic development efforts. They are a lot more focused.
We are not putting money into wayfinding signs and going to dinners and things like
that. So, in that vein it is my sincerest hope that you will look at ... the mundane is not
always so exciting, but that is where we earn our pay in local government by dealing
with things that make the biggest impact to people and that is keeping the taxes low and
the services well tuned and running well. I hope that we will continue to see you folks,
continue to scrutinize the tax rate and expenditures. That downtown sidewalk may look
great, but I think it is going to be a budget buster. I think it is an example that happens
when you have non - experts try to draw lines on a map and figure that ... try to come up
with a vision and it doesn't work. I think we are having that situation now with the
crescent district and form based code. I am very glad that form based lite is taking on a
different view amongst the staff and I still believe that the H -2 corridor needs some
reform with new guidelines, which I am very surprised that we did not give direction to
staff on and maybe even narrowing those boundaries. In the transportation area, I still
believe that we have to do something for folks in Linden Hill. I had a conversation with
Johnny Rocca the last couple of days and he actually believes that there is a way to do a
light. I hope that staff will pursue this. As long as staff is against doing anything for
Linden Hill, I don't think we are going to go very far and the access road will be on the
agenda forever and ever. So, I would urge you to talk to him and have staff really look
at this seriously. Also, your comprehensive plan. I think there is some deficiency there.
The planning commission did not really look at ... the main purpose of a comp plan is to
look at new right of way, new designs for interchanges and so forth. So, please do that.
Finally, utilities. This is going to be the one thing that is unfortunately going to hang
over the town's head for a long time unless something is dealt with on the utility issue. I
wanted to bring up the URAC thing for a vote. I was told that the commission is going
-- to come back with something and they didn't. So, here it is. Nothing has been resolved
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COUNCIL MEETING December 13, 2011
for the winter quarter. I hope that you will do something as expeditiously as possible. I
am going to do the best I can to try to keep the general assembly off your backs and the
board of supervisors, but I think that something has to be done on the town's end to deal
with the winter quarter situation. So, anyway, that sums it up. It has been an honor and
a privilege to serve you and I will look forward to doing the same in the years ahead as
supervisors. Different title but same job. Basically the same job to do what we can do to
keep Leesburg a great place to live, work and play. God bless you all and Merry
Christmas and Happy Hanukah.
15. MAYOR'S COMMENTS
I just wanted to disclose that I met today with the representatives of Village at
Leesburg... James Williams, Mike Banzhaf, and Charlie Keeler. Other than that,
everybody have a wonderful Christmas, a wonderful new year. Hanukah is coming up,
so a very happy Hanukah. Just a wonderful holiday season. I am actually going to miss
you, Ken. You have often been an awful lot of fun to work with. We look forward to
working with you on the board, so congratulations.
16. MANAGER'S COMMENTS
Merry Christmas, Happy Hanukah and Happy New Year will all be coming up
very soon to everybody. I wanted to just extend my congratulations to Supervisor soon
to be Mr. Reid. It has been a real pleasure working with you over the past few years.
Looking forward to continuing to work with you in your new capacity. So, on behalf of
the staff we will look forward to greater exploits and more projects on the town's behalf
over there. I just want to let you know, since I worked over there for a number of years,
don't believe half the things they tell you about me.
17. CLOSED SESSION
a. None.
18. ADJOURNMENT
On a motion by Vice Mayor Wright, seconded by Council Member Reid, the meeting was
adjourned at 11:29 p.m.
S 1
C. Umstattd, Mayor
Town of Leesburg
Clerk of C it
2011 tcmin1213
59 1 Pa e