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HomeMy Public PortalAbout2015_tcmin0428 COUNCIL MEETING April 28, 2015 Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding. Council Members Present: David Butler, Thomas Dunn, Suzanne Fox, Katie Sheldon Hammler, Marty Martinez and Mayor Umstattd. Council Members Absent: Vice Mayor Burk. Staff Present: Town Manager Kaj Dentler, Deputy Town Manager Keith Markel, Town Attorney Barbara Notar, Assistant Town Manager Scott Parker, Chief of Police Joseph Price, Captain Carl Maupin, Lieutenant Chris Tidmore and Clerk of Council Lee Ann Green AGENDA ITEMS 1. CALL TO ORDER 2. INVOCATION: Council Member Butler 3. SALUTE TO THE FLAG: Council Member Martinez 4. ROLL CALL: Showing all members present. 5. MINUTES a. Special Session Minutes of April 13, 2015 On a motion by Council Member Martinez, seconded by Council Member Butler, the Special session minutes of April 13, 2015 were approved by a vote of 6-0-1(Burk absent). b. Work Session Minutes of April 13, 2015 On a motion by Council Member Martinez, seconded by Council Member Butler, the work session minutes of April 13, 2015 were approved by a vote of 6-0-1 (Burk absent). 6. ADOPTING THE MEETING AGENDA On the motion of Council Member Martinez, seconded by Council Member Butler, the meeting agenda was as presented, by the following vote: Aye: Butler, Dunn, Fox, Hammler, Martinez, and Mayor Umstattd Nay: None Vote: 6-0-1 (Burk absent) 7. PRESENTATIONS a. Resolution of Respect—Robert J. Zoldos On a motion by Council Member Hammier, seconded by Council Member Butler, the following Resolution of Respect was approved: 1 I Page COUNCIL MEETING April 28, 2015 RESOLUTION OF RESPECT Robert J. Zoldos WHEREAS, Robert J. Zoldos passed away on February 7, 2015 after leading a life of exemplary service to the public; and WHEREAS, Mr. Zoldos spent most of his life in the service of others in many capacities including a long career in air traffic safety with the Federal Aviation Administration; and WHEREAS,he further served his community as a volunteer firefighter, treasurer, president, assistant chief, and chief of the Leesburg Volunteer Fire Company; and WHEREAS, desiring to make a difference in the quality of life for his family and neighbors, he also served as a member of the Leesburg Town Council from July 1, 1998 until June 30, 2006; and WHEREAS, he was also an active volunteer with Central Loudoun Little League, serving as a coach, manager, umpire, and president, thus touching the lives of many of Leesburg's youth; and WHEREAS, he was a devoted husband, father, and family member to Kay, Robert,Jr. and Thomas as well as a large, extended family. THEREFORE, RESOLVED the Mayor and Town Council of the Town of Leesburg in Virginia hereby extends their sympathy to the Zoldos family and ask that this Resolution of Respect be spread upon the minutes of this meeting and that a copy be given to his family. PASSED this 28th day of April, 2015. b. Certificate of Recognition—WhichWich Franchisee of the Year On a motion by Council Member Hammier, seconded by Council Member Butler, Leesburg's Which Wich was recognized for achieving Which Wich's Franchisee of the Year award. c. Certificate of Recognition—Melt, MSN Best Burger in Virginia On a motion by Council Member Hammler, seconded by Council Member Butler, Leesburg's Melt was recognized for being named MSN's Best Burger in Virginia. 2 I Page COUNCIL MEETING April 28, 2015 d. Presentation—Loudoun Farm to Fork Miriam Nasuti gave a presentation about the upcoming Farm to Fork event that links local farmers with local restaurants to support locally produced food. e. Keep Leesburg Beautiful Challenge Results Kaj Dentler reported that the Council picked up 1420 pounds of trash and staff picked up 3240 pounds of trash, both significant increases over last year's numbers making the real winner the Town of Leesburg and its citizens. 8. PETITIONERS The Petitioner's Section was opened at 7:53 p.m. Gwen Armstrong, 304 Patterson Court, NW. "I head the Bible Reading Marathon, which is starting Saturday and so I just wanted to say thank you to Madam Mayor and the Town Council. This is our eighth year. It is an exciting time. People from all walks can come and read and participate and it is a good time had by all. I would just like to invite each one of you to come out when you have a moment and participate." Mayor Umstattd noted that the Bible Reading Marathon starts Saturday, May 2 at noon and will run through Thursday. The Petitioner's Section was closed at 7:57 p.m. 9. APPROVAL OF THE CONSENT AGENDA On a motion by Council Member Martinez, seconded by Council Member Dunn, the following items were moved for approval as the Consent Agenda: a. Deeds of Dedication for Public Right of Way from Town-Owned Parcels RESOLUTION2015-048 Authorizing the Mayor to Execute a Deed Dedicating a Portion of Lot 2, Subdivision Waiver Plat on the Land of the Town of Leesburg, Virginia PIN 233-16-9971, and All of Lot 1, Block 1, Meadow Brook Farm Estates, PIN 233-16-1562 for Public Street Purposes b. License Agreement Between Northern Virginia Regional Park Authority, Leesburg Acquisition Partners, LLC and the Town to Cross the Washington and Old Dominion (W&OD) Trail RESOLUTION 2015-049 Authorizing the Town Manager to Execute a License Agreement Between the Town of Leesburg, Leesburg Acquisition Partners, LLC and the Northern Virginia Regional Park Authority to Allow Town Utilities to Cross the W&OD Trail 3 I Page COUNCIL MEETING April 28, 2015 c. Approving a Contract for Mural Artist RESOLUTION 2015-050 Approval of Agreement between Town and Artist for the Parking Garage Mural Project d. Remote Participation—Council Member Butler MOTION 2015-006 I move to allow Council Member Butler to remotely participate in the Council meeting of May 12, 2015. The Consent Agenda was approved by the following vote: Aye: Butler, Dunn, Hammier, Martinez, Wright and Mayor Umstattd Nay: None Vote: 6-0-1 (Burk absent) 10. PUBLIC HEARINGS a. Amending the Leesburg Noise Ordinance The public hearing was called to order at 7:59 p.m. Scott Parker gave a brief presentation on the changes proposed by Council Member Butler to the noise/sound ordinance: • Two types of ordinances in Virginia o Decibel based o Per Se (plainly audible) • Current ordinance is Per se (plainly audible) and is being enforced. • Decibel based ordinance requires a decibel meter, training in use, and uniform standards. • Decibel based ordinance can be harder to enforce, but not in all cases. • Plainly audible standard means you can hear it or feel it. • Excessive noise is any sound that can be heard and is disturbing. • Proposed decibel limit would be 55 dbA or dbC at night and 75 during the day. • DbA is the most common method of measurement. DbC, is a measure of sound that equates to vibrations (bass) tones. • DbA is recognized by courts as the standard. • Measurement is taken at the property line or inside the structure. • Extreme sound is any sound that exceeds OSHA standards. • Registration permit for amplified music would be eliminated. • Amplified sound is not allowed after 8 p.m. currently. • Proposed ordinance contains a temporary exception permit, which will allow special events. • Permit would not be used for outdoor restaurants or regularly occurring events. • Violations are currently a class II misdemeanor. Proposed ordinance puts first violation as a class IV misdemeanor, which is a lower grade. 4 I Page COUNCIL MEETING April 28, 2015 Council Comments/Questions: • Butler: Comparisons between proposed and current ordinances are very interesting. The idea of the ordinance is to try to simplify the entire thing and have the different sounds subject to the same hours as everything else and have as few exceptions as possible. I started out trying to say what if there are no exceptions at all to any of this and worked with staff and staff showed that there are other laws that cannot be violated. Those have to be exceptions and there are some things that just won't work without exceptions. We got something that is as simple as it can be made. All modern sound ordinances are moving to decibel based. They are objective and not subjective and I think in most cases here this is an improvement for residents. There is a couple of areas between 8 p.m. and 9 p.m. or between 8 p.m. and 10 p.m. that currently amplified music is not allowed at all. This ordinance would allow that at whatever decibels we end up picking for the daytime. Whereas, on the flip side, amplified music, if it is registered, can be pretty much any volume from 10:30 a.m. to 8 p.m. Whereas, this ordinance limits it to the same decibel level as everything else. It is simpler, where everybody else is pretty much headed, easier and better to enforce. I think it's the direction we need to move instead of the confusing ordinance we currently have. • Dunn: A couple of comments and a couple of questions. From looking at this, there would be no registration process if somebody or some business wanted to go above the decibel level you are proposing, is that correct? • Butler: There is a permitting process. The registration process is an administrative process only. The permitting process is something that is designed for special events. There have been some churches sponsor weekend concerts. Obviously, those would exceed the ordinance limits, especially at night, so they would need a permit. That is what the permits are intended for. • Dunn: And you are only looking at two permits allowed per year? • Butler: No. There is no specific limit, but it is intended only for very special events—not recurring items. Not for outdoor music at restaurants. • Dunn: One thing we may want to consider with it is something that falls in line with some of our other special event permitting that we have whether it be for tents—aren't special events limited to six per year and they cannot be within a certain time period of each one—you can't have consecutive special permits. There has to be a gap in time. Staff answer: That is correct. It is in the zoning ordinance. I don't know the exact number. Business essentially have a set number of special events and they can't be within a certain amount of time of each other. Village at Leesburg does it. • Dunn: Should we decide to go down that permitting path, we want to be consistent. We may want to have that in line with other types of permitting that we have. On Page two, I would recommend striking activities at schools because those activities at school is redundant as it would already fall in activities on government properties, unless you are talking about private schools. 5 I Page COUNCIL MEETING April 28, 2015 • Butler: That is actually a good point. The only reason we ended up with an exception for schools is that there are school activities - sports games during the week that may go past 9 p.m. So, that becomes difficult to deal with. If something goes into extra innings and it's past 9 p.m. —what do you do? • Dunn: So, that's why you are allowing schools to be any volume at any time. • Butler: It was a hard fought battle won by staff on that one. • Dunn: That may be something we want to revisit also only because you could have private functions held at schools if somebody was able to go to the county and get a private function and all of a sudden they are able to have noise at any time. The other two issues I had were under Fire, Burglar and Vehicle alarms, I'm a little concerned with allowing that to be allowed at any volume at any time. Under the current noise ordinance, there is a 30 minute cut off. I might like us to consider a possibility of those types of alarms having a time limit rather than being allowed to go on forever. • Butler: There is something that staff did. The actual language in the ordinance is slightly different than that and I forget exactly what they did to address that. • Dunn: Then, the last thing I had deals with the sound volumes deemed hazardous to one's health and then below that it says "note, any volume means up to not exceeding levels deemed harmful to an average person's health". There are probably experts out there who would say almost any sound could be hazardous and that's a little ambiguous. Almost anyone could deem something to be hazardous to their health, so that's a little iffy. • Butler: That note only applies to the current noise ordinance. The proposed ordinance includes the extreme sound, which uses the OSHA guidelines, which is what people typically use for sound that is injurious to your health. • Dunn: Are we going to have a copy of those guidelines in the ordinance? • Butler: I think in the ordinance, it has a reference to it. Staff answer: In the definition of extreme sound, it references the OSHA standard. • Dunn: Do you know where that is in the packet? What I'm saying is that we don't know what the OSHA standards are. We are just referencing it. In essence, what I'm getting at is, is somebody who is upset with the noise could claim that it's harmful and that the OSHA standards are below the decibel levels that we are setting. So, do we have those standards available as part of the ordinance. Do we know what that is tonight? Staff answer: The town uses that standard for our requirements for hearing protection. It is the adopted standard. • Dunn: The only reason I mention it—if we do adopt the decibel level and OSHA's levels are lower than that, then that rule would usurp all others. Anybody could claim that its harmful to one's health based on OSHA standards. The only other thing I was going to suggest that should we go with a decibel level, we may want to consider that sound needs to be sustained for a certain period of time. In essence, that whether it is two minutes, one minute, three minutes—if somebody has peaked a certain decibel level that they are not found in violation because they peaked that for 6 I Page COUNCIL MEETING April 28, 2015 three seconds, but that noise has gone on for a certain period of time and therefore they have violated the ordinance. It also would demonstrate they are definitely pushing that decibel limit by having it a sustained period of time. I would recommend two minutes, but whatever Council might want to consider on that. • Butler: There is nothing in the OSHA standard that is less than 90 decibels. I don't think anybody would want to have a standard that was higher than 90 decibels. • Dunn: I agree. • Martinez: I do appreciate the effort, but I'm concerned that the testing in the garden was not realistic. I would like to know if any petitioners know what 65 db sounds like from their back yard or what 75 sounds like from their backyard. I have yet to see us go back and do some real time testing. I would not be comfortable with the 75 db, if we don't know what it sounds like in the neighborhoods from the business. Not only that, in the nighttime, I would like to see it revert back to plainly audible so we have a high grade of both where the businesses have their decibel level set during the day until 9 or 10 o'clock, but after that it reverts back to plainly audible where the residents have some control over noise issues. I would not be supportive of voting tonight until I get some real time testing to let the residents know what 65 db or 60 or 75 from their backyard from the businesses. Who knows—they may be comfortable with 75 where we don't know because they don't know what 75 is from their back yard. Those are questions that I need to have answered before I can vote for noise ordinance at 75 db. The other alternative is we could start at 60 and maybe progressively increase it 5 db as a test to see how it impacts the residents. That way we could slowly bring it up to a db that is comfortable for both the businesses and the residences. • Hammler: I'm looking forward to hearing from our petitioners this evening. I appreciate your coming out. I'd like to say it up front that also I am not comfortable voting tonight, primarily because we had thought two members of Council would be absent and I believe the word got out to a number of people that we probably would not be voting tonight. So, for that reason alone, I would prefer that we postpone this. I certainly support Marty's points. Based on what's written in the proposed resolution, we would not even be implementing it until next January, so I don't think there is any urgency from a town perspective. I did just want to say that I appreciate that Dave looked into and researched the dbC measurement, which is innovative in that it provides a measurement of the bass tones, which I know we've all be concerned about as we are kind of grappling with the different types of music and deaf children that can literally hear the booming of the sound. That was helpful. I also appreciate that we will be looking at what I think was something that needed to be fixed which is that if somebody came for registration for an amplifier but the expectation was that they could blast at any decibel level or any sound level and I don't think that should be the expectation ever, so I'm glad that we will try to fix that. So, at this point, I want to ask a couple of questions so we can turn to listening. What decibel is equivalent to plainly audible? 7 I Page COUNCIL MEETING April 28, 2015 Staff answer: I do not know the answer to that. It is subjective to ambient noise and since plainly audible is what disturbs you, that means different things to different people. It is subjective. There is no decibel equivalent to that. • Hammler: The other question I have relates to the new enforcement in terms of the class IV moving up to class III and then class II. In a hypothetical situation, if there is a manager of a restaurant, is the person who is the manager at the time of the complaint the person who gets this violation or is it assigned to the restaurant? The reason I'm asking this question is presumably there is turn over with management and if it was a new manager that comes on yet there is a consistent problem relative to new managers getting the new violation, I'm a little unclear how that would work. Staff answer: The simple answer to that is under our current code, it could be any number of people being held responsible. It could be the person generating the noise, i.e. the DJ or the band member or it could be the facilities manager, restaurant manager, etc. Our policy is we try to go after that person because that's the person that controls the overall environment. • Hammier: So, it is an individual who may or may not be continue to be employed at a particular restaurant and a new person may come in and the problem could persist. Staff answer: That's why we use a 24 hour window in determining whether there are repeat offenses at that location. • Hammier: I'm even saying like two months later they could get another violation. Just a thought relative to some of the complexities of determining who gets the violation or at least thinking through how we need to state that in the ordinance. I also would appreciate just clarification for the impact on town-wide events such as First Friday. Are they naturally exempt, or are they not? Staff answer: It is the intent to have government sanctioned, government sponsored activities exempt from that for a period as defined. • Butler: First Friday would not be exempt in my intention in the ordinance. It's a recurrent event and it is not town sponsored, although it is town blessed, so it would not be exempt. I don't think there is any reason to exempt it. There is no particular need. Staff answer: The Flower and Garden Show, Fourth of July, etc. Those are different. • Butler: First Friday is not only First Friday, but if First Friday turns into all Fridays and Saturdays, which would certainly make it more vibrant downtown, it certainly would not fall under a special permit. • Hammier: That may need to fall under Marty's point about actually testing because I don't want there to be any unintended consequences. This is something that benefits all businesses. The expectation has been voiced in terms of knowing exactly when the music is going to end. Obviously that is a concern and/or something we should test prior to determining the answer on that. Then, my last question is we all know that music has variation in terms of decibel levels, so how do we determine what length of time that we are 8 I Page COUNCIL MEETING April 28, 2015 measuring with the meter to come to this average decibel that would one g g would ultimately be in violation of? Staff answer: There is an expectation from the prosecution that there is a length of time that is defined but I haven't seen any of those enumerated in ordinances. They may exist, but I haven't seen a length of time. What you do have, as far as evidentiary purposes, you will have a logging sound meter. That is what is required for evidentiary purposes. They are very sensitive and have calibration, etc. It is anticipated that there will be a sustained length of time. What exactly that is, has not been fleshed out yet. • Butler: Most of the ordinances that have decibel based, specify what the meter will be in the slow response mode. Now, whether the courts require a certain length of time or not, that is something that is past the legislative stage. You can even test it. If you use the meter on your iPhone, if you set it at the default and you talk or play music, you see the response go up and down like crazy whereas if you go into the setting and set it for five samples a second instead of 100 samples per second, you will see it becomes much smoother. That is what the meters do. It gives a more realistic measure of the average decibel level. • Hammier: I guess what I'm driving at is a hypothetical situation—somebody comes in and measures something over a five minute time period. So, something starts and stops. It's not bothering anybody versus something that's going on for an hour. I think we should get some legal guidance on that if there needs to be anything written in the ordinance. Staff answer: I would argue that even with the plainly audible standard, police get called and they could come out and noise could be happening that's plainly audible for a period of time, but once they get there they may or may not hear it. • Hammier: Well, if it's going on for an extended period of time, it's probably what we are trying to drive at. That it's something that hasn't gone away. We are trying to get to a better state relative to how we are measuring. I would appreciate more guidance on that. • Fox: During the power point, you had a point where you said it was harder to enforce a decibel based ordinance. Can you explain that a little bit? Staff answer: Some of it goes back to what Council Member Hammier stated. A lot of jurisdictions have different decibel standards for different districts. It becomes a matter of complication. • Fox: How many complaints at the plainly audible standard have you received and were there any resulting actions with these complaints? Staff answer: The Police Department provided a print out that shows that between August and December, there were 13 noise complaints downtown. The rest of the town had a 185, or a total calls for service of 198 for noise related complaints. There is no break down of whether they are business or residential related. For the first three months of 2015, we had a total of 53 complaints. Of those, 22 have been loud music, 31 have been loud noise. Of that, four have been in the downtown area. The vast majority (25) have been in high density residential areas throughout the town. 9 I Page COUNCIL MEETING April 28, 2015 • Fox: Nothing has been taken to court? Staff answer: None of the loud music. Some of the loud noise have summons cases pending. Those are more neighborhood-type disputes, not music cases. • Fox: What do you see as limitations to the proposed decibel based ordinance, as opposed to the plainly audible that we have right now? Staff answer: I haven't taken it to that level. Both types of ordinances are enforceable and they are both utilized. • Fox: I have a few concerns about the boundaries because they are so different for different dwellings, but the last question I have is about the meters. I know that really hasn't been addressed yet, but I know that there has been some talk about the cost of the meters and I was wondering if you could do into that a little bit and what the cost entails. Staff answer: As with many things in government, there is a specific standard set forth by the Code of Virginia as to what is required. Section 2.2-1112 sets the standards required for a number of different types of equipment. As a component to that in January 2014, the Department of General Services in the Commonwealth of Virginia distributed their directive entitled Data Logging Sound Metering Devices and set forth specific requirements that sound metering devices must have for use by enforcement within the Commonwealth of Virginia. So, based upon that, we did a very quick Google search for sound meters that would meet the standards and are used by law enforcement for decibel enforcement. As such, that is the dollar amount that you saw in the staff report—approximately $2500 per kit. The kit includes the meter, batteries, charger, thermal printer necessary for recording the data logging. I think it has to have an internal memory of 15,000 events, etc. I can't tell you if there are others out there that meet the standard that are cheaper. We could certainly look at that. If this particular company is on the Virginia Contract list, that is probably the direction that we would look at. • Fox: If we were to go with the decibel based standard, how many of these meters would we be utilizing? Staff answer: We could get by with three, but I'd recommend four since there may be calibration times or equipment repair times, etc. We would probably want two on the road at any given time. • Fox: Would they be staying with a same officer or would they be checked out? Staff answer: The officers would have to be specifically trained, but it would be rotated among shift officers as many of our pieces of equipment are so that there may be officers on each shift that are trained. They would check it out, check it in as we do with AEDs and that type of equipment. • Fox: What is the anticipated replacement—the life of the meter? Staff answer: I really can't give you a definitive number on that. I would base upon some of our other equipment—radar, laser units at about five years. Having not used them, it is just a guess. 10 I Page COUNCIL MEETING April 28, 2015 • Martinez: I think five years is a very conservative estimate. The other thing about it is there has to be a calibration schedule and calibration costs and you have to send them out to be calibrated. You haven't investigated that yet? Staff answer: No, sir. We haven't. • Umstattd: I'm not at this point inclined to support this. I think 75 decibels is way too loud, especially when the proposal is to allow noise at the level of 75 decibels to cross a residential property line or to be heard through the wall of an adjacent apartment. You will not be able to hear yourself think much less be able to converse with a member of your family if that is the noise you are going to have to put up with until 9 or 10 at night. I am not persuaded that this is a good move. Teri Simonds, 404 S. King Street. "I really appreciate all the work that everyone has taken to continue to work to resolve the excessive sound issue. Your efforts are really appreciated even though it seems like it gets contentious a lot. So, the purpose of the sound ordinance is to preserve the peace and it has been implied in work sessions and in conversations out and about that the current sound ordinance is deleterious to economic development. Sound ordinances should not be tied to economic development and growth. It targets small businesses that want to play outdoor music. The other point I would make is that the old and historic district buildings which contain both residences and businesses are very close together. At that proximity, the proposed 75 dbA/dbC level will still be too loud as was experienced during the sound level demonstration that was held in 2014. Residents do have a right to enjoy their property in peace and those residents who are closest to the businesses that are doing amplified outdoor music, they can't. I live pretty far away and during the summer of 2014-2013, a quarter mile away, I could not sit outside without hearing music. I could not be inside with my windows closed without hearing every word. So, with the development that is going on with new restaurants coming in, with proposed outdoor venues, I have a concern about the sound overspreading the town. Sound travels differently. It is blocked by buildings. If you are on top of a building, it is going to get dispersed. So, I urge Council to consider lowering the 75 decibel level to 50 or 55 during daytime hours and go to plainly audible and disturbing during nighttime hours." Stanley Caulkins, "I'm here as a friend to everybody. I would like to see as much medium ground taken by everybody in this idea. Some said a year ago the town put requirements on the Lightfoot for their hood that was vibrating too much. I know they spent a lot of money putting a damper on the hood of that thing, but that was a constant noise that you could have gotten used to, but you have to compare that to some of these other things. I live at 102 Morven Park Road, S.W. Seven tenths of a mile from my house to the stop light and I can hear the music at my house. Most of the music you hear is the amplification of the bass and the drums and whatnot. You don't really enjoy any of the music, because it doesn't get that far. There are areas of town that have blockages. For instance, my brother lives on the other side of the hospital, but he has that great big hospital and he has the two million gallon water tank that's a buffer zone, so he doesn't even know you've got music downtown. There are considerations. You know I've served in the Old and 11lPage COUNCIL MEETING April 28, 2015 Historic District for the Town of Leesburg and I don't know whether the Old and Historic District has a say in this or not or if anybody asked them. If you set a rule on a piece of paper that says it can't be above this decibel, that decibel—you will drive the chief of police crazy running around trying to see where it is, where it isn't and it's going to be gone before he gets there. You'll never be able to police it. That's why we have to spread calm on everybody and make this attempt to keep our town in a little bit less noisy situation, I think." Chris Ellinghaus, 4-03 Silya Way. "I've lived in Leesburg, I guess since 1993. It's been marvelous to watch it grow. One of the things I've noticed in the last couple of years is just how vibrant the town has become, especially the whole downtown area from Harrison Street. I think a lot of that is due to the fact that there has been outdoor music from time to time. It is really enjoyable. I tell my friends about it that I work with in Fairfax and they come up to Leesburg. They are bringing their business into Leesburg. I also play in a band. Full disclosure here. I do enjoy it. I enjoy it immensely. One of my band members is here, but we understand where the town is coming from and I think we'd like to see a really fair solution that won't bother folks, but can also keep the vibrant nature of this town going. I really think this town is becoming a jewel because of things like First Friday. We were just looking at the decibel meter over here on the phone and this room was just about 60 decibels—the low conversation. So, even at 55 decibels, that's barely a whisper as far as I'm concerned. I just think if we take drastic measures, we are going to put a stop on the vibrant nature that this town is the best of." Carleton Penn, 12 Wirt Street, NW. "I'm about 75 yards up the street. Mr. Caulkins, you brought back a nightmare. Lightfoot, my god. It was the sound of a low flying aircraft. It would go until 3-4 a.m. in the morning. All it needed was a baffle. I even offered to build plywood around it. It would have done the trick, I think. I digress. I am a criminal defense attorney. This is what I do. If this thing is passed, I don't think it is going to have any effect. None. Poor Chief and his officers are going to be forced to defend this piece of garbage. Ms. Hammier hit on it. Who is going to be cited? Who is going to be subject to the punishment? The businesses, when they start seeing the police officers show up with the meters —the one who got cited the last time—hey, they've got the night off. So, how many times are businesses going to be cited as a first offense? It is going to be a bait and switch. Now, whether you all realize it or not, Class IV is like drunk in public. It is a fine and no big deal. Next one is fine only. No big deal. It is only when you start getting to class II the jail kicks in. Who goes to jail? As long as it is a fine only . My family has been here. I'm seven years shy of about 100 years in this town. It reminds me of how it was growing up. If you wanted illegal fireworks, you would know the ordinance and there was this truck parked on the side of the road and we'd go—he had South Carolina plates. You'd buy the fireworks and the comment was hey, if we get a ticket, no big deal. They'd get two or three tickets. They'd put the court dates off. It was like they'd laugh and say hey, it's a cost of doing business. It's a joke. The people who violate this aren't going to care about the fines. They are just going to pay it. It is a cost of doing business. Nothing is going to happen until 12 I Page COUNCIL MEETING April 28, 2015 somebody starts worrying about going to jail. It is that simple. This thing, as it is written—you can drive a truck through it. It is so loosey goosey. I'm sure Madam Counsel probably agrees with me. The poor police are going to be like enforcing this crap. That's all my understanding". Dave Groy, 16 Wirt Street. "First of all, Mr. Martinez, in my back yard using my iPhone decibel meter, 50 decibels is plainly audible. With the noise ordinance back on the agenda, we ask that you please consider some of these thoughts in your deliberations. The neighborhood would like to keep the plainly audible standard, everyone recognizes that the new ordinance would likely be decibel based. Consequently, we'd like to ask that this level be equivalent to the noise level of plainly audible which, in my opinion, is likely around 50 decibels, not much higher. We ask that the noise level be measured at the property line of the neighboring residences or businesses. We ask that the nighttime noise level remain at the plainly audible standard. We ask that day, evening, and night time hours be determined so as to respect the overall well-being of the community—taking into account the kids, weeknights, studying for school. We ask that town government sponsored functions such as First Friday, weekend events like the Garden Show, Acoustic on the Green, Bluemont Concert Series, parades, school functions, etc. be exempt from the noise ordinance. These are events that benefit all. I know at a previous meeting, the previous town manager told us that First Friday was considered a town sponsored event. We ask that there be no exceptions to the ordinance since between new restaurants opening and existing ones, granting exceptions could mean continuous unbridled noise levels throughout the entirety of the year. We ask that there be strict enforcement with significant, progressive consequences for repeated violations of the ordinance. We believe that the noise ordinance being proposed will have a devastating impact on the quality of life for downtown businesses and downtown neighborhoods. We certainly appreciate all the time you've devoted to this. It has been about three years now. We thank you very much for all the time you've invested in this. In closing, no one wants to stop the music. We just ask if the ordinance is going to be changed, the new rules require that everyone basically keeps their noise within their property boundaries. If we can do that, I think it's a win for everyone". Rob Guerra "I live at the corner of Wirt Street and Cornwall. Last weekend had everything going on outside my house. We had a great time and thoroughly enjoyed it. The thing that concerns me here is—for 45 years, I've sold information technology to the federal government and we have all kinds of legislations and ordinances to deal with, but as a business person, what I've found is whether it is information technology or food, high quality product, good service at a reasonable price, you are going to invite new business. So, I don't know why we are doing this. I really don't. That's all I have to say". Fred Williams, 21 Wirt Street. "I also had a sound stage off of our porch this weekend. It was great. If you will bear with me, I had a few comments written down after I had read the staff report and I had a few more comments after hearing Mr. Scott and the rest of you talk about it tonight. I would just like to remind you 13 I Page COUNCIL MEETING April 28, 2015 that one thing that is in the preamble of this ordinance, and I think it is in the preamble of every ordinance that I have read in the state, is that it is entirely about restricting noise detrimental to the health, welfare, safety, and quality of life of the inhabitants of the town. There is not a word in here about contributing to businesses, contributing to vibrancy of any area, any neighborhood. It is all about peace and quality of life. I think it's kind of remarkable—at least for those who have spoken thus far—the musician or the residents, because we only represent about five percent of the complaints that occurred through the second half of last year. I didn't do that math on the first half of this year. Most of the complaints are residential to residential and yet the proposed standard is something that first off, if you wanted to figure out how loud is loud, you might have to spend$2000 to buy a meter to do a slow meter decibel reading. I can't use the decibel meter on my phone because that's not a slow walk. So, I would argue that none of us could certainly know two people living side by side in a townhouse would have any idea what that standard is. So in terms of making the Chief's life miserable, this would really make it miserable. I would say also that for the—we don't have statistics on complaints of business to business, but there were a couple where the businesses are adjacent to each other and there is a problem there. I assume that you know of those as well. So,just to think about it—what standard...the value of plainly audible is by god we know how loud it is and it doesn't take much if you went out at 8 o'clock at night and sit at the end of my driveway, or at the end of your driveway or the end of anybody's driveway and figure out what's the ambient noise and should someone have the right to make this much louder. I would also— a couple of specifics—I would disagree with the redefinition of day time into night time. Having later hours on Friday and Saturday. Noise is noise and it doesn't make any different at all what day of the week it is. Noise is noise. In the current ordinance, there is the ability to have—at least as I read it under the permitting process, that you could have amplified noise from 10:30 a.m. to 8 p.m. Perhaps that's justified because during the daytime with everyone out living a normal life, things are a little noisier, so maybe you need amplification, but by 8 o'clock at night in most neighborhoods, in any downtown. Take any part that you want—old downtown or new downtown, things are a little quieter so I argue do you really need to have any amplifiers? To keep the louder period and the louder level—stick it at 8 o'clock. In the power point, Council Member Butler, that you issued back in January, you listed seven major concerns with the current ordinance. I was really pleased to see that none of those concerns was that we need something louder than plainly audible. So, if you go back and figure out what is plainly audible, how can we figure out what is the decibel level. Maybe that's an area of compromise. I did have a lot of notes about what's 60 decibels or 70 decibels, but given the fact that this is a new piece of machinery that Scott did not have when he did the sound ordinance, I don't think that any of us have any idea what that level is. I wanted to discuss a specific question—there is a line where it defines in the definitions excessive decibel level inside of a business at 75. If we have a defined level inside of a building, that would seem to be absolutely catastrophic to the Tally Ho, which is certainly over 75 during one of the concerts, or at the Dance King. These are great businesses, very successful. Put them under 75 and they are toast. In finding similar comments have been made about how many meters. Last year would have averaged one complaint a day. Maybe having two meters for the entire city 14 I Page COUNCIL MEETING April 28, 2015 would be appropriate. How could we think that we are going to need more than two meters on the street?" Richard Koochagian, "I have to admit I haven't been fully following this other than I do live downtown at 212 Loudoun Street, SW. I do hear noise, particularly from the Thomas Birkby House, but that venue is only periodic and it is on the weekends, so that really doesn't impact us. Usually weddings, whatnot die down at around 10-11 o'clock at night. Not on a school night. So, there is a trade off there. What I think is bothersome is when you start to have businesses generate noise on a more frequent than periodic, and regular basis and there are a lot of neighborhoods that get affected by these. It depends on the topography, it depends on whether you are behind the water tower, or where I am, I'm down in a little bit of a valley. Some people are higher up. You get different amounts of noise. What I would say is that, as most of you know, I am on the Board of Architectural Review, so I interact with the downtown businesses in a different way as it comes to the historic district. What I have observed over time is violations are something we deal with on a regular basis. There is no mechanism to really handle violations and you get the repeat offenders. What that does, is it costs the town money. From a taxpayer perspective, I don't understand...if I was from the police department, this seems to give me a headache. If I'm all of a sudden having to train officers, monitor expensive devices that have to be certified every so often—that's an awful lot. Do we really have that much of a problem? What is the benefit of changing the ordinance from what it is now? It's one of those things. If it is above I can hear it, feel it. If our ordinance is plainly audible, why does that not suffice? It allows flexibility, whether it is a town event—okay, maybe there is a reason for it to be a little louder, but if it is a repetitive thing, then complaints can be filed. I am not seeing why the ordinance needs to change. What is the benefit to the town? I think all property owners, whether you are business or residence, has a job to maintain their property and that includes whether it is the yard, the noise you make, the appearance, safety of your property. Noise is something that you can't easily contain on the property, so the louder you turn up the volume, the more it is going to affect other people. Quite honestly, I don't think that's reasonable and I don't think that's fair. There is always going to be ambient noise downtown. That's one of the things that tells me it is vibrant, but to alter an ordinance just for some businesses seems to be one sided because they are not here all the time. They may not be here in 12 months. They may not be here in six months. We all have to learn to live together and people need to keep their noise to a reasonable level. I'm not sure that enforcement ability is really there. If we are going to spend month training, spend money on equipment— how do you really go about that? We have the same problem at the BAR. We have ordinances, they get violated, but we have no mechanism to really go out and penalize them effectively, so they keep doing it. That costs us money over and over again as taxpayers. I really would not support a change to the ordinance. I don't think it's necessary. I have not heard a good argument for changing it". Linda Ifert, 205 Royal Street, S.E. "First of all, I've been up here several times talking about this. I don't mean to be disrespectful or rude in anything I say. I'm usually very nice, polite, understanding person, but I really don't understand 15 I Page COUNCIL MEETING April 28, 2015 how the town of Leesburg could possibly going from a plainly audible to one that is plainly unreasonable. What is being proposed here would just drive people insane and out of the town. Just what Council Member Martinez said. Do you know what 75 decibels sounds like? I hear it. I work as a technical director and a sound engineer at some times. It is well above what residents and other businesses should be forced to endure. It is also difficult to know what it sounds like unless you are experiencing it. I agree totally with doing a real time testing, if you are going to continue in this direction. Where did this paper come from? I don't have a clue where 75 came from? Everything, all the research I've done and everything I've seen — towns that compare to Leesburg and have decibel limits in their ordinance are well below 75 and believe it or not, even New York City. I believe that the current ordinance does need some tweaking, but I'm still not confident that a decibel based system is the answer. There are so many variables as so many have said already. There's weather, what's going to be the measurement system — is it dbA, the A weighting, or dbC, C weighting? This proposal says dbA and or dbC. So which one is it? There are differentials between the two. I know A is for the higher frequencies and C is for the lower frequencies, but which one are we using when you come out to measure? I don't know how that would work. If the police came to my residence and took measurements, it would be difficult for them to know which business they were taking measurements from because I'm right next to McDowells and the Doner. So, that gets a little gray and squirrelly there. If you do decide to go with the decibel based system, I would agree with Dave Groy and others that it should not exceed 50 dbA during day time hours. I've measured. I have a good decibel measurer from work and I keep at my house. I go outside when I hear music. When I come into my house, it is measuring between 50-55 at the property line and it comes into the house. The bass comes into my bed when I'm trying to go to sleep. It's hard to monitor all that with so many variables and conditions. I think this proposal needs a lot more work and I think there are other situations to consider that were taken out of the original. I don't see anything in here about dogs barking, yelling and shouting. There are plenty of people shouting in that parking lot next to me at different hours. Or just even noise from the establishments. Just even talking noise, crowd noise, hubbub. That gets pretty loud at times. So, with this proposal, anyone and everyone would possibly have to endure excessive loud behavior from animals and people for up to 15 hours straight without being able to complain at all. These situations should be addressed and put back into the ordinance in my opinion. The other situations, that were taken out — other scenarios. I've heard comments from Council Member Butler, about the residents, knowing what we were buying into. That wasn't the case when I bought my property in 1995. I brought a house next to a kitchen and design remodeling business. I know things change, but no one is trying to stop music. I love music. My intention isn't to it. It is only to find a balance that we can all live with together. We should be working to being courteous to each other and not rude. What we all want is something reasonable that will be acceptable to residents and businesses alike. The goal should be to find a common ground so that people can enjoy living and businesses can continue to thrive in the quaint, charming, historic town of Leesburg that we all think it is. Music should be at a reasonable level for patrons and residents and there should be a reasonable time to lower and stop music and other loud disturbances. It is also called being respectful 16 I Page COUNCIL MEETING April 28, 2015 to others. I want you to continue to work on this proposal to find the right compromise. If this proposal passes as it stands, it will only create friction and disharmony against those who live and work here. Please find another solution so that Leesburg can stay friendly and attractive to all. Life is short. We all want a good quality of life. I really don't want to move". Velda Warner, "I live behind Dave Groy and Carleton. I get it from Shoes. It is constant. I can't open my windows. I hear shouting and yelling. I can't sit out — I just redid my deck. I can't sit out on it because of the noise. You can't talk to anybody. You can't ask anyone over. It is awful. If you go to the 75 decibels, it's like having a lawn mower running outside your window. It's just very upsetting and the stress is awful." Sola Palotta, "So, I've been reading the decibel level ordinance. It's sort of like it's speeding on the road. Everyone knows what the number is. My thought is you guys pick the number. If it's not 75, whatever it is, pick a number and that's what we will deal with. Go with it. The cops would have the readers just like they have radar guns and every piece to detect if people are faster than what they are. People are saying that they are not going to have a penalty for this. Set it up and enforce it. I mean that's what the cops do with speeding tickets and stuff. I just think that whatever the number is — I don't own a restaurant, but if I did and it was 50 or 65, or 70, whatever it is. I would have that on hand. Why does a restaurant owner — whenever a band started to get close to 60, I'd go hey you guys you are getting up to 60. Keep it down, but you know, you tell everyone and the cops would come out and measure it. We'd have a standard, scientific number that would help enforce it and help make it clear what the deal is. Right now, it's sort of vague, I think. I do hope that you guys work on this and not have it on — I saw it is going into effect in January next year. We've already waited all last year. There was going to be this decision that kept getting pushed back and even this year, it was going to be about a month ago. You were going to have a public hearing that got pushed back to this date. I don't see — if it isn't going into effect until January of next year — that's two whole years. Actually, it was talked about before last year. So, we've had three years of this. Just pick something. I'm hoping — when I talked to Dave Butler, I thought it was going to be like July 1. He even thought that with the new fiscal year. We've had like a year and a half that I thought you guys were investigating and figuring out—please work on it and find out what the number should be. If you need to settle to make it fair to the businesses and fair to the residents. You should have a balance and stuff. Just to clarify with First Friday — some of you know I'm the First Friday coordinator. I've been doing it for like six years. Before me, it was other great people. Linda is actually a big volunteer with it. So, I think them for starting it and everything. But, as far as I know, it is a town sponsored event and we currently have an exception. Right now, we currently go to 8 o'clock and the exception that we had was on First Friday outdoor music is allowed to go until 9 because First Friday has always been until 9. That is an exception that is allowed —just to clarify so you guys know. In closing, I just hope you guys can have some meetings to figure this out and get more input from us and from everyone and just make a decision and let's go forward." 17 I Page COUNCIL MEETING April 28, 2015 The public hearing was closed at 9:14 p.m. Council Member Butler made a motion to approve the draft ordinance as proposed. The motion died for lack of a second. 11. RESOLUTIONS AND MOTIONS a. None. 12. ORDINANCES a. None. 13. UNFINISHED BUSINESS a. None. 14. NEW BUSINESS a. None. 15. COUNCIL COMMENTS Council Member Dunn had no comments. Council Member Butler "I think it's unfortunate that no body seconded my motion so that the public has no idea when it is going to come back to Council. I think that was a tactical error on my part. I have a disclosure here—today I met with Bob Sevila on a potential rezoning. I thought the dedication of Mervin Jackson Park was a wonderful event. I'm glad that a whole lot of people showed up. I'm sure that some others will comment on that. Arbor Day was another good event where we went to a school and we planted a tree. We talked to—I don't know, it seemed like about 4-5 thousand kids and I did a tree. So that was a lot of fun. The Flower and Garden Show—the Tree Commission gave away 1500 trees. We could have easily given away 2000. The weather was good on both days, so I will be providing Lee Ann a list of all the volunteers that we had for that. We are planning on giving them certificates at the next meeting. I think that's supposed to be scheduled then. The Oatlands Gala was also a fun event where a number of Council Members were able to go and we all got to dress up nice. That was fun and we helped raise a lot of money for Oatlands. The last thing is that I would ask the town attorney to look through the ordinances that we have, or resolutions, and find out how First Friday is a town sponsored event. Maybe we passed a resolution on that, but I think it was simply decreed by the last Town Manager, which doesn't actually have any effect on whether it is sponsored or not." Council Member Martinez "I was very excited that we finally got Mervin Jackson Park dedicated and the families were there. It was a very nice event. I want to thank Rich Williams and Kaj for putting this together for us". Council Member Hammier "I also attended the meeting with Bob Sevila about the O'Connor property north of town today. It also included Kaj and Keith and Barbara and Scott and I think I listed everybody. I want to thank Miriam for coming out to give a presentation about Farm to Fork. I think that's such an exciting initiative. It's so important on so many different levels. If you were able to see the movie "Fed Up" when it was 18 I Page COUNCIL MEETING April 28, 2015 sponsored by the town. A lot of other people are passionate about trying to find options for healthy eating. It was just eye opening in terms of how important it is to seek local, healthy foods. Along those lines, the town is profiled in this month's April Virginia Town and City for our Healthy Eating, Active Living campaign. Love the topic and was delighted to be asked. I bring it up because the HEAL folks are providing applications for grants so $5,000- 9,000 will be available. I'd love it if we could take a look at those grants when they become available May 4. They are due June 25. Those are implementation grants for municipalities like us that have already initiated and kicked off their HEAL program. So, if we could put that on our to-do list, that would be great. I also attended the Mervin Jackson ribbon cutting. It was such a wonderful event. Once in a while you attend these things—in this case it was just so inspiring. Madam Mayor, I appreciated what you said about Vice Mayor Jackson and how wonderfully humble he was and just that his spirit lives on, I think, in that park. Bill Ference did a beautiful job designing it and some of the remarkable things he did creatively like going to a salvage yard and turning the wrought iron into a piece of art and the antique benches which provide a lovely place to sit and enjoy quiet time looking at the lovely architecture there. So, that was a wonderful event. Speaking of events, I will be attending the VML regional meeting—regional supper tomorrow evening at Morven Park. That topic is on Civic Engagement and I will look forward to following up with our topic for seventh graders after that". Council Member Fox "I would like to first thank those who have offered their input tonight for tonight's public hearing. I think hearing your opinions was very valuable. Thank you for that and for showing up. Just to that issue. I would really like after hearing both sides, I would like to find some sort of hybrid solution. I think it would be beneficial to both businesses and to residents. I don't think we should be favoring one to the exclusion of the other. I also think amplification might be the key. I would like to explore a little bit about amplification versus acoustic, maybe down the road a little bit. I just wanted to say that about tonight's public hearing. I also wanted to congratulate staff. That trash can is quite the prize. I'm glad you have it. I also had the opportunity to attend and complete the planning class. I'm now a certified planner. I'm really glad to have that past me, but I'm excited that I'm a certifiable planner, one of the two. I also had the opportunity to help congratulate some exemplary officers and citizens at the Annual Crime Victims Awareness Recognition Awards that was hosted by the Commonwealth's Attorney's office. It was a really nice event and it really opened my eyes to some of the things that have been going on around the area. Flower and Garden show—awesome success. It was a pleasure to attend and be part of the dedication of the Mervin Jackson park. The families that came out were extremely supportive and I saw the spark in their eye and I think they were very proud to have that park dedicated. I think that's about it". 16. MAYOR'S COMMENTS I have a disclosure. I met today with town staff and a gentleman from Mazer Consulting and KB Company on their interest in rezoning what is now the Auto Recyclers property to put a significant number of residential units. Their initial proposal is 120 residential units, half of which they are proposing to be age restricted. The other half of which would not be. They are in the early stages of trying to figure out what to do with that. I encouraged them to contact all members of Council and talk to Council about their proposal. That is all I've got on disclosures. Congratulations to Kaj. I was always 19 I Page COUNCIL MEETING April 28, 2015 suspicious that your predecessor allowed the Council to win, but you clearly were far more competitive and wanted to make sure that didn't happen this time. You just know the Vice Mayor has said that she does not like losing. I expect you are going to have some trouble from her. That was fantastic that staff picked up that much. We did hear that Captain Maupin was a fundamental part of that. Council Member Butler said something to me, I think last night, that I thought bears repeating and Dave is welcome to jump in, but I really want to thank our police department for the two incidents that they received honors during the Valor Awards for ensuring that everybody got through those incidents safely especially in this day in age when we are hearing news from all over the country. I just cannot say enough about how well our police department handles very, very tricky, dangerous situations and the fact that they are able to disarm people and ensure that nobody gets hurt is quite amazing these days. Thank you, Chief. Please express to your officers the fact that we deeply appreciate the level of training you go through and their self-control on the job." Council Member Martinez: I think next year on the Keep Leesburg Beautiful, that it should be us, the town staff and let the Police Department challenge us since they did help the town staff this year and I think that was the deciding factor. I think they should go out on their own and see if they can keep up. Mayor: If the police department were to do it, they would beat both the town staff and the town council. Is that what you are going for? A three-way? 17. MANAGER'S COMMENTS Congratulated everyone on the Keep Leesburg Beautiful Challenge. He complimented town staff for all their efforts on their own time. He stated the employees are committed to the organization and the community. He reminded everyone that the Monday, May 4 is the Visit Loudoun Annual Meeting and Tourism Awards. He stated that Marantha Edwards has been nominated for a tourism award. He also reminded everyone that on May 13, the Annual Business Awards event is at the Tally Ho Theatre. 18. CLOSED SESSION None. 19. ADJOURNMENT On a motion by Council Member Martinez, seconded by Council Member Butler, the meeting was adjourned at 9:27 p.m. IP"" Kris en�C. U s attd, Mayor Town of Leesburg •,TtiT 4r J_ �► Clerk of Count 2015 tcmin0428 20 I Page