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HomeMy Public PortalAbout2015_tcmin0526 COUNCIL MEETING May 26, 2015 Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding. Council Members Present: Kelly Burk, David Butler, Thomas Dunn, Suzanne Fox, Katie Sheldon Hammler, Marty Martinez and Mayor Umstattd. Council Members Absent: Council Member Martinez arrived at 7:38 p.m. Staff Present: Town Manager Kaj Dentler, Deputy Town Manager Keith Markel, Town Attorney Barbara Notar, Assistant Town Manager Scott Parker, Director of Economic Development Marantha Edwards, Director of Planning and Zoning Susan Berry Hill, Director of Plan Review William Adman, Director of Finance and Administrative Services Clark Case, Director of Public Works Tom Mason, Director of Capital Projects Renee Lafollette, and Executive Assistant I Tara Belote. AGENDA ITEMS 1. CALL TO ORDER 2. INVOCATION: Council Member Butler 3. SALUTE TO THE FLAG: Vice Mayor Burk 4. ROLL CALL: Showing Council Member Martinez arriving at 7:38 p.m. 5. MINUTES a. Work Session Minutes of May 11, 2015 On a motion by Council Member Butler, seconded by Vice Mayor Burk, the work session minutes of May 11, 2015 were approved by a vote of 6-0-1 (Martinez absent). 6. ADOPTING THE MEETING AGENDA On the motion of Council Member Butler, seconded by Vice Mayor Burk, the meeting agenda was as presented, by the following vote: Aye: Burk, Butler, Dunn, Fox, Hammier, and Mayor Umstattd Nay: None Vote: 6-0-1 (Martinez absent) 7. PRESENTATIONS a. Certificates of Appreciation—Girl Scout Troops 2183 and 4734—Clean up Efforts During Keep Leesburg Beautiful Month On a motion by Vice Mayor Burk, seconded by Council Member Butler, Certificates of Appreciation were approved for the following Girls Scouts for their clean up efforts during Keep Leesburg Beautiful Month. Rachel Gorman Lily Kilduff Kaitlin Vasquez Meghan McConchie Rishika Sharma Celeste Castro Quinn Keyes Leila Lucas 1 I Page COUNCIL MEETING May 26, 2015 Sophie Brent Emily Brent Risa Dunham-Ben Zion Maggie McCrory Mallory Bouman b. Proclamation— 150th Anniversary of the Salvation Army On a motion by Council Member Hammier, seconded by Council Member Dunn, the following was proclaimed: PROCLAIVIATION 150th Anniversary of the Salvation Army WHEREAS,the Salvation Army's only business in this community of Leesburg, Virginia, as everywhere, is still human business, undertaken with the joy of family of humankind to the greater glory of God; and WHEREAS,through sound innovation and professional services, the Salvation Army services the people of Leesburg, Virginia with unshakable faith in all, no matter how desperate the situation and views all people as people with possibilities; and WHEREAS,the Salvation Army acts on behalf of all the residents of our community, with neither salvation nor any other condition prerequisite, nor expecting any thanks, yet nonetheless welcoming community support; and THEREFORE,PROCLAIMED that the Mayor and Council of the Town of Leesburg in Virginia extends its congratulations to the Salvation Army on the occasion of their 150th Anniversary, and do urge all citizens to join in saluting the steadfast men and women who bind up the broken hearted and renew the heart of our community by their quiet service of compassion. PROCLAIMED this 26th day of May, 2015. c. Presentation—Status of the Land Development Process Kaj Dentler gave a presentation on the current status of the Land Development Process. Key Points: • Town staff's mission with respect to the Land Development Process is to protect the interests of the town by ensuring that development projects: o Will not become liabilities for taxpayers o Will be constructed in a way that protects adjacent and downstream property owners o Are designed for long-term success and viability o Foster sustainable economic development that helps balance the tax base • Process flaws were identified and fixed 2 I Page COUNCIL MEETING May 26, 2015 o Applicants did not have a single point of contact o Staff from different departments reviewed plans and sent comments without resolving internal conflicts o No communication with project owners, only their consultants • Goal of the new process is a defined timeline and predictable outcome • Staff has no control over how long applicants take to resubmit plans or the quality of plans submitted • Process works best when: o Developers work closely with staff from the beginning o Engineers submit quality plans o Engineers are familiar with the specific design requirements of northern Virginia o Applicants meet with town staff to discuss comments • Issues add time and complexity to the review process: o Remaining parcels in town have challenges such as flood plain, steep slopes and access limitations o Infill and redevelopment projects have special challenges o Federal and state stormwater management requirements • Process won the VML Achievement Award in 2011 and was presented as a case study at the Alliance for Innovation's Transforming Local Government annual conference in 2014 • Continued input sessions with stakeholders in the development community to keep improving the process 8. PETITIONERS The Petitioner's Section was opened at 8:23 p.m. Dr. John Robinson, Douglass School, "I am speaking in support of Mobile Hope's location on the property on Sycolin Road just down the street from Douglass School. Douglass School has partnered with Mobile Hope for the past two years. As most of you know, Douglass School provides a smaller, more personalized education setting for some of Loudoun's at risk youth. Each year, we serve almost 400 students in our various programs. Thirty-five to forty-five percent of our students receive free or reduced lunch and each year about 10-20 students become homeless during the school year. When Mobile Hope builds their life skills center, it will provide a safe haven for these students. When I say homeless, we need to clarify that. There are currently three to four students at Douglass right now, who we would consider homeless—they meet the official criteria to be homeless. Only one of those is actually living on the street. The other three are what we call couch surfing- spending one night with one family and another night with another so that the families don't even know sometimes that they are homeless. They just think they are spending the night with their son or daughter. Those are the students that need additional support and help. And I cite those because at Douglass, we will take 70-75 new students each year, we actually get referrals for about 200-250 students, so we are taking about one of out every two to three students. I share that because that means that all of the students in need are not just at Douglass, they are all over the county. Mobile Hope has been there to support and help our students and families in need, whether medical needs, clothing, food, or in basic 3 I Page COUNCIL MEETING May 26, 2015 survival needs, Mobile Hope has been there both on our school site or at sites within the community. Within the last year, Mobile Hope's base of operations has been near the site near Douglass which makes it very responsive to our student's needs. Being so close has actually enabled some of our students to give back by volunteering at Mobile Hope. I encourage you to support Mobile Hope's acquisition and use of the property in question. It will be a great addition to the community and respond to a need that is pretty severe." Donna Fortier, Mobile Hope. "I wanted to thank you for the opportunity to speak and I understand that you all and I, as well, received the informational memo that was submitted to you all and I just wanted to provide a point of clarification in the memo and kind of address the perception of homeless shelter. I wanted to make sure that there is an understanding that the facility we are looking to build is a youth life skills center that would allow kids the opportunity, yes to live there, but also to understand how to make it in society. As I had mentioned before, so many of these kids are living in survival mode. They don't really understand how to fill out a job application, how to do an interview, so we would like to provide the mentoring, nurturing, caring environment for these kids. We have, as Dr. Robinson said, a great relationship with the school system. We have a great relationship with Douglass Alternative as well as Frederick Douglass Elementary, which is across the street from us. The kids do a lot of drives from the school to Mobile Hope. We have a lot of youth groups that come in throughout the year from many different schools, elementary, middle and high school, so there is a lot of support from the school system to allow a building such as this to help these kids. As Dr. Robinson said as well, a lot of the kids that we want to help are couch surfing. Some are living in cars, absolutely, and in the youth shelter. In the youth shelter, they age out on their 18th birthday and many of the kids are still going to school and still trying to get a diploma. So, we want to be that facility that helps them reach that goal. I did, I wanted to provide some additional reading for your down time, which I am sure you have a lot of, but I also wanted to let you know that the life skills center we are looking to build is for kids 18 to 21 years of age. They will be hand selected. It is not for every child, because not every child who fits that age category is really a candidate for what we are looking to do. So, there will be a selection process. There will be an application process. There will be a contract made between Mobile Hope between these children and young adults, so that they understand that they are responsible for their actions and that there are things that they need to do to live up to becoming a responsible citizen. So, we'd love any time for any of you to come out and look at the facility, get an idea as to what we are looking at doing. I think because of the location that is remote enough, away from a lot of neighbors, it is next to public transportation and it provides a great opportunity and facility to kind of remain on the outskirts of what's available. It does provide these kids public transportation—the W&OD bike path, so it's a wonderful location and I would love for you all to come out and see it. I just wanted to reiterate that it is not necessarily what we would conjure up in our mind when we hear homeless shelter. It's more of a life skills centers for these struggling, at risk young adults. Thank you for your time." Gwen Pangle, "Tonight, I am here as the president of the Leesburg Downtown Business Association. For the last year and a half, we have been giving the LDBA a facelift and we have just a brief recap since I haven't gotten to speak to you in the last year and a half about the LDBA. The logo has been revamped. Our website, by Pia Miranda has been 4 1 Page COUNCIL MEETING May 26, 2015 completely redone. It is really wonderful, if you haven't taken a look at it. We have made great strides in doing what I call a collaborative effort between the EDC and the Town of Leesburg and Visit Loudoun, because what we wanted to do was capitalize on the big events that come through Loudoun County, through Visit Loudoun, and then take those people and drive a portion of them into downtown Leesburg after the event, during the event, or before the event. So, that's been a big focus for us. To that end, we contracted with BizApps, Maura Bowserman, if any of you know her. She has developed an app called the Leesburg Downtown Business app. If you haven't signed up, or gone to find that, go to your app store and type in DTLeesburg, and you will have an app for Leesburg because everyone is walking around with their head down nowadays, so we thought that we'd capture them where they are. What's happening this weekend, is what I came to tell you about. We became a part of— in fact our first partnership with Visit Loudoun and our first ability to use what is called the check in feature of this app. So, basically destination races, if you haven't heard of it—it's a race that and we are really lucky in Loudoun County to have that here this year, so we decided it would be our first opportunity to use the app and see if we couldn't get that check in feature to work really well before the big Police and Fire Games, which is going to a huge 30,000 people event with Loudoun County having ten of those events, Morven Park being the closest one and probably the biggest one for us, which will be soccer. So, we developed some marketing pieces. We have put it all out on the app. People can go and they can download the QR Codes or they can go to DTLeesburg and we convinced 13 of our merchants to be the first ones in to try this. Friday night, they come to town, the 29th—the racers do. They start to check in. All of the merchants who participated are going to have this in their window so that the racers who had this information in their virtual packet and up on the website for destination races, will be looking for this. All of those 13 merchants will have this in their window. What we have done is to put together an after party—put your toes in the sand—and the party will be up at MacDowells from 4-7 on Saturday, so racers will start checking in as early as Friday when they get here and then they know that the culmination of their check ins, they must check in with four different merchants, and once they do that, it will actually see at MacDowells. When they go to each merchant, they will push on one of these and they are going to check into four. Once they do four, it will say congratulations, you've gained free entry into the Beach Party. Then from 4-7, they can go to MacDowells and they have a special—I think they get what they call a Frickle appetizer and some other things. That will be where their party ends. It will drive—probably our target market is about 500+. We are thinking it could be as high as 8, but we are hoping for at least 500+ from those 4000 in downtown Leesburg. I just wanted to let you know that was happening and to encourage you to sign up for the app and then we will hopefully be able to give you some feedback about how well that went and how we can drive a larger group of people downtown. Hobie Mitchel, "I had a couple of things, because I saw you had a presentation tonight on the land development process and I only really have one comment. I think the town is very fortunate to have the people from the top to the bottom who have a willingness to make it happen. It is not perfect and we always want something on my side of the table— to do something a little quicker and a little faster, but they have been reasonable and they always ask for different options and different thoughts, as long as it meets the letter of the law of public policy. I think that's enough said, but I think you are very fortunate to have the right people at this place at this time because I know the job is not easy. What I am here 5 I Page COUNCIL MEETING May 26, 2015 tonight about is Mobile Hope. I was here last time and I can't expound on what you've already heard tonight, but I will give you a little observation food for thought. The last time I was here, there was a wonderful presentation from Girl Scout troops. In fact, I think you had another one tonight. It made me think that's the complete opposite of what we are doing here. Here you have a group of families or individuals that take care of their children and try the best they can to raise those kids and give them some life support—give them some feedback. What we are here about is the complete opposite of that. What we are trying to do—we have a place we believe is the right location, but we need to get your ability to at least allow us to happen. Then with that, we can raise money to actually put the building up which is where we ultimately want to be. I'm very fortunate to have a group of volunteers and individuals who really try to help these young adults and children, because they haven't had that experience of life —a lot of them you saw through public presentations —the complete opposite of what we have. That is why this is so important and you have a lot of individuals who really want to help pull this off and we need your help and we hope you'll support the text amendment we've asked for and we can move on and try to make it come to fruition. Thank you very much and I appreciate your time." Mayor: I suppose since we didn't have a work session last night, under new business we might entertain an addition to a future agenda for whether we want to go forward with a text amendment and/or any rezoning that might be required to accommodate Mobile Hope. Barbara, do you think that's the proper location on tonight's agenda? There may be other members of Council that want to bring it forward and request it e added. If nobody else does, I will. We will go to new business at the end of the meeting and talk about it. Andrew Borgquist "I'm here to continue to speak about the issue that I have been bringing on multiple, multiple, multiple times before the Council and continue to come and speak about. I guess—you know I've said quite a bit over the past times I've been here but one of the things I'll say today or tonight be that some of the discussion that you guys are having about good customer service and due process and making sure that things are basically done properly and efficiently—you know, basically good government and so a lot of the issue that I have brought before you is because I feel that there has been a significant break down in considering this aspect of the town of Leesburg that would be something that needs to be fixed, that needs to be addressed and so you know what happened wasn't right. Wasn't fair, wasn't transparent. Ultimately, I think there was a rather significant amount of impropriety that took place within the Town of Leesburg and so Council Member Fox had spoken to me a little bit before the meeting and was kind of asking me you know, maybe it isn't particularly clear what it is that I want in coming and addressing the Council and ultimately what I want is this kind of thing—this kind of inappropriate action to not take place. I have made suggestions on ways that I think you could emphasize that the town takes this seriously and does not condone this kind of behavior. Ultimately, you know, I've left empty handed time and time again and I suppose maybe this meeting, I will be leaving empty handed yet again. But, you know this is important so I will continue to come and hope that this, which I think is fairly obviously not what we want the town to be, that something will be done. I guess—I don't want this to sound like unnecessary flattery, but maybe if I have not eloquently proposed solutions or something of how to fix this, I see some very smart and capable individuals in front of me and perhaps you could help me then define what it is 6 I Page COUNCIL MEETING May 26, 2015 that could be done to address this. Maybe I can come here and talk about something different." The Petitioner's Section was closed at 8:42 p.m. 9. APPROVAL OF THE CONSENT AGENDA On a motion by Council Member Martinez, seconded by Council Member Butler, the following items were moved for approval as the Consent Agenda: a. Approval of Contract for Hope Parkway Extension Project RESOLUTION 2015-058 Awarding the Construction Contract for the Hope Parkway Extension Project to Phillips Construction, LLC in the Amount of$1,759,980.33 b. Community Development Block Grant(CDBG)Program Cooperation Agreement RESOLUTION 2015-059 Approving an Amendment to the Cooperation Agreement with the County of Loudoun in Order to Remain Eligible to Participate in the Community Development Block Grant Program c. Authorizing the Conveyance of an Easement over Town Property to Washington Gas RESOLUTION 2015-060 Authorizing the Conveyance of an Easement to Washington Gas Light Company to Install a Gas Service Line on Town Property for the Leesburg Town Hall Emergency Generator Upgrade d. Authorizing Time Extensions for PMW Farms Section 1 and Section 2 RESOLUTION 2015-061 Authorizing Time Extensions for Completion of the Public Improvements for PMW Farms—Section 1 (TLCD 2009-0002)and for PMW Farms—Section 2(TLCD 2010- 0005) e. Approval Contract for Town Hall and Police Station Emergency Generator Upgrade RESOLUTION2015-062 Awarding the Construction Contract for the Leesburg Town Hall and Leesburg Police Station Emergency Generator Upgrade Aye: Burk, Butler, Dunn, Hammier, Martinez, Wright and Mayor Umstattd Nay: None Vote: 7-0 7 I Page COUNCIL MEETING May 26, 2015 10. PUBLIC HEARINGS a. None. 11. RESOLUTIONS AND MOTIONS a. Amending the Fiscal Year 2015 Budget and Making a Supplemental Appropriation in the Amount of$100,000 to Purchase Road Salt to Refill the Public Works Salt Storage Facility On a motion by Council Member Butler, seconded by Council Member Martinez, the following was proposed: RESOLUTION 2015-063 Amending the Fiscal Year 2015 Budget and Making a Supplemental Appropriation in the Amount of$100,000 from the Unassigned Fund Balance to the General Fund to Replenish the Town's Salt Storage Facility The motion was approved by the following vote: Aye: Burk, Butler, Dunn, Fox, Hammier, Martinez and Mayor Umstattd Nay: None. Vote: 7-0 12. ORDINANCES a. Authorizing Town Participation in the Virginia Municipal League/Virginia Association of Counties (VML/VACo) Investment Pool Trust On a motion by Vice Mayor Burk, seconded by Council Member Martinez, the following was proposed: ORDINANCE 2015-0-011 To Authorize Participation by the Town of Leesburg in the Virginia Municipal League/Virginia Association of Counties(VML/VACo) Virginia Investment Pool Trust Fund for the Purpose of Investing in Accordance with Section 2.2-4501 of the Code of Virginia Council Member Comments/Questions: • Martinez: Just what would be the ramifications of not doing this? Staff answer: The only ramification is that we would not be able to participate in the pool. This is a joint arrangement where different local governments can invest in the pool and they share the cost of buying, selling, administering the purchase of US Treasury Bonds, highly rated corporate bonds, or US Agency bonds in the 18 month to three year maturity range. The town can buy all of those things directly, itself, if it chooses to do so, but it allows us to spread the cost amongst the different communities to buy it and it spreads any risk as the markets go up or down. It just authorizes the town to invest in the pool, it does not commit the town to anything. • Dunn: How often have we exercised our right to use the benefits of the pool? Staff answer: We are not allowed to participate in the pool without an ordinance from the town authorizing the Finance Director to invest in the pool. So, this ordinance authorizes us to invest in the pool. 8 I Page COUNCIL MEETING May 26, 2015 • Dunn: This is our first time doing it. Staff answer: We have never invested in the pool. We do participate in the Local Government Short Term Investment Pool. That is sent to a money market. That pool right now is returning about 8 basis points. This pool is presently returning about 56 basis points. The motion was approved by the following vote: Aye: Burk, Butler, Dunn, Fox, Hammler, Martinez and Mayor Umstattd Nay: None. Vote: 7-0 13. UNFINISHED BUSINESS a. Leesburg Sound Ordinance On a motion by Council Member Butler, seconded by Council Member Fox the following was proposed: ORDINANCE To Amend Town Code Chapter 24(Offenses Miscellaneous Provisions);Article V (Offenses Against Peace and Order);Division I(Generally);Section 24-182 (Declaration of Policy) Council Comments: • Butler: I changed the presented date to be May 26. I made a typo change to the definition of excessive noise and I changed the effective date to be July 1, 2015. • Hammler: I don't think we have the right copy, then, because that change did not make it to this. • Umstattd: This is the old one and Dave is bringing up the changes he is proposing right now. • Butler: Under excessive noise where it says "measured across the residential real property boundary". The way that it currently reads, you could imply that if you just measure it inside a structure, then that's a violation. So,just change the wording slightly to say "measured across the residential real property boundary" or "across a commercial property boundary whether inside or outside of a structure". So, that makes it clear that it has to be across a property boundary. In fact, two meetings ago somebody in the audience brought that up and I just forgot to fix it from yesterday. The third one was the effective date, right down near the bottom— Section IV of the actual resolution on page 10, is effective July 1, 2015. Other than that, it is identical to what was handed out. Our current ordinance is a bad one. I want to give you a couple of examples (plays notes on the recorder). You can hear that in the back, right? Well, if I played this in my back yard, I am violating the ordinance. Now, would I get in trouble for doing this in my back yard? Probably not because we have decided to enforce it the way that we enforce zoning ordinances and there has to be a complaint. If I did that in my back yard, it is unlikely that my neighbors would complain, but they could and if 9 I Page COUNCIL MEETING May 26, 2015 they did, the police would be compelled to come and compelled to tell me to stop playing my recorder. Some people would say, oh no no no. It also needs to be excessive. That is incorrect. It is automatically excessive if it can be heard. That is directly right out of this ordinance. All it needs to be is somebody who complains about a sound or about music that they can hear. However, I can sing—maybe not very well, but I can sing loudly until 10 p.m. and they can't do a thing about it. My wife sings loudly—too bad for the neighbors. I can yell. I can shout. I can blow things up, as long as it is legal to blow the things up, it doesn't matter how loud they are. If I have legal fireworks, it doesn't matter how loud they are. I can do that until 10 p.m. and they can't complain, but they can complain about my recorder. I can run my lawnmower at 7 a.m. on Sunday—they can't complain. I can run my chain saw at 6:30 a.m. on a Sunday and they can't complain. I have another little prop here—I know you guys just love my props. But here is a cute little thing. It is a little gizmo about this big with this thing on the end. Now you can hear it. This is illegal unless I have it registered with the town. Now, again, it is unlikely that somebody is going to complain, but it doesn't mean that the ordinance is a good one. The ordinance is bad because this is illegal. But, I didn't break the law. Why? Because the government has exempted itself from all this. So, I did this in a municipal facility, so I am exempt. In fact, all government related activities are exempt. All school related activities are exempt. I could get away with it though. If I put this on here, and I play a religious song—I'm good. I will claim that's religious expression. Who is to tell me it's not? That's exempt. Cornerstone Chapel is right across the street from where I live or it is going to be right across the street there— and I am perfectly fine with that, but the fact is they could have a rock concert at 3 o'clock in the morning and under this ordinance that says this is a religious activity, it is exempt and they don't even have to register their equipment. They could have speakers 20 feet high. There is no need to register, because right here it says if you have an exception in subsection 4, you don't have to register. So, the town doesn't, the school doesn't. That's okay. Now, how we enforce this is also very interesting. I've already said that somebody has to complain, but let's say I'm playing my recorder and the guy next door is playing a flute and the flute could be a lot louder than my recorder, but a third neighbor doesn't like me or doesn't like the music I'm playing. He can call up—the police will come and the complainant will point to me and say I want him shut down and that's exactly what will happen. Before you say, oh no no no, that's not how it happens, I have an email from the police chief saying that's exactly how it works. If you want a better example, think of let's say Doner Bistro and MacDowells are both playing music. Different types of music— one is much louder than the other. It doesn't matter. If somebody calls up and complains, the police will come with a police walkie talkie. They will bring it one to Doner Bistro and say is this the one that annoys you? Then they will bring it over to Mac Dowell's and say is this the one that annoys you and the person that is complaining picks. It doesn't matter which one is louder. Whichever one the complainant decides to choose gets shut down. That's bad, bad law. We can also claim 10 I Page COUNCIL MEETING May 26, 2015 basically anything we want as town activity. If you read the ordinance, it basically defines town activity as things like parades, fireworks, things that we put on, but we wink and nod and say First Friday—we'll pretend that's a town activity even though it is sponsored by commercial businesses, it is executed by commercial businesses, all the music is on commercial business property. That's okay. We wink and nod and we don't bother to say anything. I'm okay with that, because I like First Friday. But if we want First Friday for second Saturday, second Friday...what happens if all those weekends are filled with the same kind of thing? Then we may stop winking and nodding. It is completely arbitrary how we enforce this and I don't blame the police. They are not the arbitrary ones. It's just the way that it is built into the process. They are doing the best that they can with a bad, bad law. Now, back to the recorder. It's not just the recorder that's a problem. Let's say you are in a townhome, or an apartment/condo and your next door neighbor is playing the television, or radio or a CD player or their child is practicing their trombone for the school play. If you can hear it—it doesn't matter if it is loud —you can call the police and they can shut you down. If you are above a restaurant and the restaurant is playing music that you can hear at all through your floor, they can shut you down. It doesn't matter how loud it is—that's what happens. This is a bad, bad law and staff and I have constructed what is arguably the best example of a modern noise ordinance that we've seen in Virginia. This is what everybody is going to. This is modern. This is effective. We can argue and discuss, compromise, negotiate over the specific decibel levels—that's fine. I've brought them down from where they were in hopes of getting enough people on the council to pass it, but the basic structure of this ordinance is far superior to our current lousy law. The only reason the current law "works" and the only reason we aren't flooded with complaints is that the vast majority of the town does not know that this ordinance exists and what it says. The best thing for bad law is to shine a light on it. What is it they say? Sunshine is the best disinfectant? Well, the more people that know about our current ordinance, the more problems we are going to have in the town and it is really time for us to get into the 21st century and pass a reasonable decibel based ordinance that is not—doesn't discriminate against music and is type of noise agnostic. • Fox: The reason I seconded Dave's motion is not because I necessarily agree with the total ordinance in front of us, but because I suspect the reason that most localities are going to some sort of decibel based system is because it could be very unconstitutional due to vagueness. So, I have a problem with an ordinance that, if somebody was in violation of it, they wouldn't know it until somebody complains about it. Because the ordinance that we have on the books right now is so vague, it very well could be unconstitutional because the punishment that is imposed is not even known at this point in time. So, if it is so vague that the average citizen can't really understand what it is saying, the only violation is the subjectivity, somebody being bothered by noise, which I understand. But, in the statute would literally require clairvoyance to know whether or not you are in compliance. I understand that there has been less complaints and I like that with the statute we have now. I suspect it is 11lPage COUNCIL MEETING May 26, 2015 because people are kind of fearful of whether or not they are in compliance. They don't even know whether or not they are in compliance. However, I don't know if I agree with everything in this statute directly. I would like to see some sort of—I think both businesses and residences have a place in this town and they need to work together and respect one another. I think we need to find some middle ground that will make both parties happy. I would like to put forth an idea that maybe somewhere in this ordinance—get it into the ordinance that maybe there is some outdoor music that is acoustic in nature only—no amplification— something like that is not going to settle all the problems, but at least it is a step in the right direction. I want to explore those kinds of things before we pass anything. • Hammier: The first question we will have to ask now that there is actually a second to this motion. The point I am going to make is that there was not a second to this motion last time and that's a whole separate issue, but do you have any response—I know we have been working on this a long time. I'm assuming, Barbara, you would have told us if our current ordinance is literally unconstitutional and that would have been brought forward. Staff answer: I don't believe it is—with all due respect to Ms. Fox. You know, the Tanner decision in 2009, the Virginia Supreme Court found that Virginia Beach's ordinance was vague because there was the reasonable standard, meaning that if somebody felt—the police or a complainant felt that noise or sound was unreasonable, then that could be criminally penalized. The Virginia Supreme Court stated that was vague and gave guidance to localities that the plainly audible sound—setting forth that if it is plainly audible and giving certain specific exceptions and examples of noise if it was plainly audible across a property boundary—that was not unconstitutionally vague. To add decibel levels, that makes it even less subjective. I guess you could argue there is an ounce of subjectivity as to what is plainly audible, but that has not been found by the Virginia Supreme Court. The Virginia Supreme Court has not held the plainly audible standard to be unconstitutional and many localities changed their ordinance, like we did. We did have the unreasonable man standard. We changed it to the plainly audible standard. This ordinance now, has added decibel levels, which takes even more subjectivity out of it, but I cannot say that our present ordinance, as it stands now, is unconstitutionally vague—not at all. • Fox: May I ask then, what "punishment" —I even hate using that word—is imposed then if the plainly audible standard was not met? Staff answer: If it wasn't met, then you are not in violation of the ordinance. It is a class II misdemeanor if you are plainly audible beyond the property boundary, unless I'm misunderstanding your question. • Fox: According to my understanding, an American Constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. There are several reasons a statute may be considered vague in general. A statute might be called void for vagueness reasons when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited or punishment may be imposed. 12 I Page COUNCIL MEETING May 26, 2015 Staff answer: The punishment is clearly set forth. It is a class II misdemeanor. There are specific examples of what is in violation of the statute and what is excepted from the statute. Once again, plainly audible has not been found to be unconstitutionally vague. Not in Virginia. • Hammier: I believe this Council made its decision by not seconding the motion last time and we, therefore, communicated to the public that this issue is closed. I am comfortable with that. I already stated where I see there are flaws in the proposal, such as things relating to the penalties, not understanding who is the manager of the restaurant, unintended consequences as relates to things like First Friday, which benefits the entire town that I do think should be exempt. So, rather than, I think, reiterate so many things that have been said and out of respect for the thousands of hours that have been put into this, I will not be supporting this additional proposal tonight. • Martinez: I agree with Katie. I thought we had put this to bed. We could have had a motion last week or last time to do it, but out of deference to Dave wanting to be here, we didn't. Then to come back with another ordinance, I felt is not appropriate. I think there is still some work to be done. I personally am tired of the work on this noise ordinance. Let's just put it to bed. • Burk: Due to my husband's surgery, I was not here for that vote, but watching it on the TV, I thought too that it was dead. If we are going to go on with this discussion, there are some major changes I would insist on if I was going to support this. The decibel levels are still way too high. I don't believe that there should be a night time decibel limit. That should be absolutely plainly audible. Once it is night time, you shouldn't have to worry about hearing noises all the time. I would want the wording on excessive sound to change to indicate that it would be at the border of the property. I am not comfortable with the violation section so I would have some additional issues with this and I would have to make some changes before I could even begin to consider it. • Dunn: I would say that overall I have concerns with the vagueness of the current noise ordinance because it does leave it up to each individual as to what they consider to be excessive. It is hard to manage that process. Whether we were to go with a decibel system or keep the current ordinance, I still think that one of the things that could possibly be a help to the current ordinance is that the excessive noise is sustainable for a certain length of time. Therefore, if it is a casual noise, if somebody is playing their recorder, as Dave showed, and that noise stops and starts. Normally if somebody is practicing the trombone, and I can tell you, my son who is first year trumpet, it is excessive noise. Somehow it is not music, it is noise. But, he is generally playing a song that has a beginning and an end. I still think that if we are going to go with the excessive noise, it should be something that says that it is noise that is continuous for less than three minutes or less than two minutes or some time frame that Council might feel they would be willing to put into the current ordinance because otherwise anybody that makes a noise, disturbs a neighbor—it is used as a punitive action. Neighbors that are not happy with 13 I Page COUNCIL MEETING May 26, 2015 each other, the police get there, the sound is not there, the police leave. The sound starts up again. The police come back and they've got to be able to say, okay, I'm measuring this sound. I agree, I can hear it, but it ends after two minutes. I think that a time frame involved would be a good addition to the current ordinance, if we should decide to lay this on the table. I think that just the way it is right now, it is missing that element. If Council wanted to not pick up the decibel standard, then we should at least have some time limit as to how long that noise is acceptable to go on. That would be my recommendation. • Mayor: I won't be supporting this. I agree with Kelly, Katie and Marty on their various comments about the decibel limit in this being way too high. It is just intolerable, even though, I want to compliment you, Dave, on your recorder playing because you did it very well. I don't want that in my ear either when I am trying to have a conversation in my home or backyard with a member of my family or friends. I just cannot imagine that anybody could tolerate these decibel levels during the hours in which they are proposed. I think there are so many flaws with this ordinance, as proposed. That is not even getting into whether or not we should have to advertise for another public hearing. I just will not be supporting this tonight. • Butler: I would just point out that if you find my recorder to be annoying, then you would certainly find my lawn mower, tree chopping, yelling and singing probably even more annoying and there is nothing you can do about that per our current ordinance. No, I don't believe that the ordinance is constitutionally vague either, but I would have concerns about it from other aspects because it specifically hammers one type of expression, music. Other types of expression are not hindered at all, so I would argue that's a problem and I would also argue if I am a person with a son or daughter in a band that person would have some right to be able to practice their instrument reasonably without having to go off into the woods somewhere where nobody can hear it. I was also at an ethics conference not long ago. It had nothing to do with kickbacks or anything like that, it was different, but one of the biggest messages they brought was that ethically, you do not have the right to not be annoyed. You do have the right to not be disturbed and there are significant differences between these and plainly audible is below the threshold of annoyed because we can't hear it, you can't possibly be annoyed by it. You have to first be able to hear it, then it has to get to a level where you are annoyed, then it has to get up to a much higher level for you to be disturbed. While it is not constitutionally vague, it is very clear that our current noise ordinance is unethical for a number of reasons. There are definitely things I could argue—but I'm not a lawyer— so I don't know if any of these would hold water, but it is definitely just horrible law. I am sure this is going to come back up because there are a lot of people waiting in the wings just to see what we do and since we did nothing and the biggest reason for us to do nothing is that there hasn't been enough complaints, I would suspect that is going to change. It will force Council to do something. I would have been better if we had done it without having to be forced and if we were reasonable, but it doesn't look like that is going to happen. I will say that it I 14 I Page COUNCIL MEETING May 26, 2015 kind of like—let's say that there was a law, and I know there is one pink house in town so let me, I don't even know who lives there, but let me use them as an example. Let's say that there was a law that gave tax breaks to everybody who lives in a pink house. Pretty much the only people who knew about that law were the people that lived in the pink houses. They would love the law and there was no way that they would be able to come to an agreement with other people about the tax break for the pink house because it would affect them financially, but if all of a sudden the law was known to everybody in town, there would be two groups of people. One group that would say this is a really stupid law and you really ought to rescind it or modify it or do something else with it; there would be another group of people who would all go and paint their houses pink which might completely destroy the cost/benefit analysis of what we were doing and we have a number of laws in Richmond and in the federal government that are exactly like that— once we find out there are people taking advantage of the law—they are perfectly happy as long as the law is not known, but once we know about this law, a lot of people complain loudly about it. Maybe the law gets changed— maybe not, but that's a whole other thing. I would just say for Council to be prepared for this to come up again. I don't know exactly when, but it won't be a whole long time and I would encourage Council to work towards a reasonable, good law as opposed to the current really bad law, which is bad for a number of very significant reasons. The motion to approve failed by the following vote: Aye: Butler Nay: Burk, Fox, Hammler, Martinez, Dunn, and Mayor Umstattd Vote: 1-6 Council Member Martinez made a motion to direct staff to stop all work on the noise ordinance. The motion was seconded by Council Member Hammier. Council Comments: • Hammier: I do think it is important procedurally so that everybody who has been involved— and thank you all for all of your time, effort, anxiety, willingness to stay on top of this issue—that you definitively know that this is the action of Council to direct staff to discontinue all work on the sound ordinance. • Burk: Does this mean that this ordinance is done? We are not going to discuss any changes to it—it is dead. • Mayor: We are telling staff not to touch anything related to the noise ordinance until such time as Council wants to change its mind on that. But, this ordinance, other ordinances at this time. • Dunn: I can't support this because actually I was going to make a suggestion that I have already made that I still think the current ordinance has two features that could actually help people and help us manage the current ordinance. One is that if people need to or want to have louder music there is a permitted process that coincides with how we manage special events and 15 I Page COUNCIL MEETING May 26, 2015 that number should robabl equal what we have already established for p Y q Y special events and then I still believe that the sound that is "disturbing" or excessive, that it be a sustained sound for a certain period of time. I was going to suggest that we take it to a work session just to add those two items to the current ordinance, so that we don't do anything else with the current ordinance, we at least add those two features, which is to again add a permanent process that coincides with special events and that the sound has to be sustainable for a certain period of time—whatever Council feels is appropriate and I am suggesting two to three minutes. • Mayor: I will be supporting Marty and Katie's motion to direct staff to stop work. • Fox: I think that there are things that could be changed that would benefit the town, but it doesn't sound like that's what's wanted. That is why I will vote nay. I don't want to stop all work. I want there to be some sort of objective policy out there. It doesn't sound like it has been fire of the belly of this council. I think it is important to go that way; however, I just don't want to stop. The motion to direct staff to stop work on noise ordinances was approved by the following vote: Aye: Burk, Hammier, Martinez and Mayor Umstattd Nay: Butler, Dunn and Fox Vote: 4-3 14. NEW BUSINESS a. Additions to Future Council Meetings Mayor Umstattd: Mobile Hope - There was consensus to put this on a future work session for discussion. Vice Mayor Burk: Extension of the Arts and Cultural District—There was consensus to have this on the next Council meeting for possible initiation. Council Member Butler: Initiation of a Zoning Ordinance amendment to change the street designation of Davis Avenue. This will be added to the next agenda under the current Council Rules of Order. Council Member Dunn: Requested a work session regarding reducing restrictions on drive-throughs in mixed use developments. It was decided to have a memo to outline the issue. He asked for an update on work on the H-2. Council agreed that an update on the H-2 is needed. Further, he questioned what police action was taking place at the Battlefield/Rt. 15 Bypass north. He also noted there is a pothole near that intersection. He questioned the progress of placement of flags on town light poles. It was noted that the poles are those owned by Dominion Power and permission needs to be granted before they can be installed. 15. COUNCIL COMMENTS 16 I Page COUNCIL MEETING May 26, 2015 Council Member Dunn "I was very pleased to see the tremendous turnout at the Memorial Day ceremony at the Courthouse. The Memorial Day ceremony yesterday had probably what I think was the best turn out we've ever had and it is really good to see that. In standing where I was—I was over by where the monuments are. I was thinking it would be so great—I was looking at the blank sides of it and I was thinking it would be great if it remains that way. We don't need any more names on monuments. General Lee, at the Battle of Fredericksburg where there were thousands of Union troops having to charge uphill and were being cut down in great numbers said that as well—that war is so terrible lest we grow too fond of it. Thinking about Memorial Day, we often think about the soldiers who have lost their lives and that's the main purpose of Memorial Day, but in reality Memorial Day was established by the family members remembering those soldiers. We should not lose sight of the family members of the fighting men and women who have lost their lives. They are the ones who should also be memorialized. I wanted to read a quick letter—you all have heard this before. I think I've read it before, but I thought it was poignant this year in thinking more about those family members who have lost military personnel—part of their lives. The letter is from Abraham Lincoln to Mrs. Bixby. It reads from the Executive Mansion, Washington, November 21, 1864. Dear Madam. I have been shown in the files of the war department, as statement of the adjunct general of Massachusetts that you are the mother of five sons who have died gloriously on the field of battle. I feel how weak and fruitless must be any word of mine which shall attempt to beguile you from the grief of the loss so overwhelming, but I cannot refrain from tendering my condolences that may be found in the thanks of the republic they died to save. I pray that our heavenly father may assuage your anguish of your bereavement and leave you only the cherished memory of the loved and lost and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom. Your's very respectfully, Sincerely, Abraham Lincoln. I found it interesting in that letter, he does not really go into a lot of detail of the soldiers who have died but in the considerations of the loss of the family member. On this Memorial Day it was something that really hit home for me having last year lost a cousin who had been in the Marines and did not die on the field of battle, but died from most likely post-traumatic stress—mixing wrong chemicals together and at such a young age lost his life. He had served in the honor guard at the Marine barracks. Had served overseas a number of years. Had served after that in special, private security guard service over in the Middle East and it is those members too that go unnamed, but the family members feel it just the same." Council Member Butler: "I had a couple of disclosures. I spoke with Molly Novotny— she gave me a general update on various applications of theirs. Talked with Christine Gleckner related to Crescent Parke and that is who advised me of the zoning text amendment that we needed to do. I also thought that the Memorial Day presentation was good. The Mayor did an excellent job as always. Also, I am really sorry that I missed the staff picnic. I had planned on going. I was all dressed for it, but I brought my car in to get about a half an hour's worth of work and 3 '/2 hours later, I was out of there. So, I was done right about when they were probably cleaning up the food, so it was a bummer. I hope it was a really good event. Council Member Burk "I want to congratulate the EDC and Marantha on the great job for the business awards. It was a great event. It was really well done and I know that the 17 I Page COUNCIL MEETING May 26, 2015 businesses are really appreciative and were delighted to be recognized. I also want to congratulate the Friends of Leesburg Public Art on their terrific first time fundraiser. It was really, really unique and very different and they raised a lot of money. So, next year, it will be an even bigger deal. They put a lot of time and effort into it so that was great. Congratulations to the Bicycle Outfitters for the opening of their new location. It has moved. It started in a little itty bitty little spot and it has just grown and grown and grown. They are very excited to be where they are. They are located in the Virginia Village where the old Ben Franklin used to be. I want to thank the organizers of the Beat Cancer at Shenanigans the other day—the other weekend. It is an example of people caring for one another and raising funds to help cancer victims and their families and it was great to see all the musicians who willingly gave their time and shared their talent for such a good cause. I think Stilson Greene was one of the organizers of it and they did a really good job and it was very inspiring and a lot of fun. My congratulations to Salvation Army. I attended their volunteer recognition and boy that was a really neat event. They have so many people that are so willing to help out in doing things. When you said down there on the dais—quietly, they really reach out to and help people. There were young kids there that they have helped and it was just really inspiring to see all those people. I want to thank the Girl Scouts for helping pick up all that trash. I was not here for Memorial Day, but I did participate in the parade in Wilmington, so that was great." Council Member Martinez "I also have to talk about the Memorial Day ceremony. That was absolutely wonderful. I remember a few years ago when somebody showed up on the lawn and there was nobody there. With your leadership and others we have reestablished it and I think it is a wonderful event memorializing our troops. Also, I know that there is a lot of happy Leesburg residents with the grand opening of Chipotle. I heard that was pretty crowded. Sorry, I missed that. Honestly, Hershey's Ice Cream Shop has become the place to go to in the evenings. Very nice. The good news is for me at least, or my son, is they are the ice cream vendor at Potomac National's Park, so my son gets to see them every time there is a game. I thought that was pretty great. The only disclosure I have is I have talked to Mobile Hope about what they want to do with the changes in zoning and Fire and Rescue—we talked to Fire and Rescue about the skate park." Council Member Hammier "A couple of quick disclosures. I also spoke with Molly Novotny about the Battlefield Shopping Center Master Sign Plan. I met with Hobie Mitchell and Bill Ostrander for an update on Crescent Parke. I did have one question for staff to provide their guidance on a change that I saw which was that they are looking at building a bike path that essentially goes from King Street—essentially goes to nowhere. It doesn't connect to downtown, which really would have been the goal at the expense of all of the interior walking paths that would have kind of connected things around the pond and so forth, so staff said they would take a quick look at that. Just FYI, I did notice that maybe the higher, better value might be looking at something that could be an immediate benefit. I had a phone conversation with Bob Sevila on the 22'and also received a phone call from Peter Burnett about the county courthouse. Everybody has mentioned all the great events we have all attended. The town business awards. I will echo Kelly—great job, Marantha and the entire EDC. Well done. I was particularly pleased, for good reason, that Eric Major won the Innovation Award. I think that we all recognize the fact that because of the tension, we haven't really been able to embrace what a phenomenal business leader he is in 18 I Page COUNCIL MEETING May 26, 2015 town and how much his presence and expansion means in town to all of us. I did make a point when the Secretary of Commerce came to town for the Visit Loudoun ribbon cutting to specifically thank him as well for all of his support for what is a huge achievement. Back to the kudos on the land development process from earlier. True, Marty, there were lines around the building when we cut the ribbon for Chipotle, but I understand you are right, they are there every single day. Family members have been trying to find the right time to get over there. Another awesome thing for Leesburg. Congratulations to Bicycle Outfitters on their expansion. Great news for all of us. The only thing I'll add about Memorial Day ceremony is what a wonderful job Judge Horne did. Wonderful remarks. I look forward to seeing you next time." Council Member Fox "I'd like to congratulate Officer Patrick Daly on his promotion to lieutenant. I think that's wonderful. Salvation Army luncheon. It was a really good time —the volunteer recognition luncheon. The one thing I didn't know that I did learn was that the Salvation Army was actually a church. That was something I just didn't know after all these years of knowing about Salvation Army— so you learn something new. Leesburg Business Awards—congratulations to all the recipients of the awards and the runners up. Thank you, Marantha, for that effort—and the EDC. Staff picnic—wonderful! Ate too much. Memorial Day observation—I was very honored to be able to attend that. It was well done and very well attended." 16. MAYOR'S COMMENTS "I think everybody has already said everything. I'd just like to thank, especially those who were at Memorial Day—the boy scouts, the girl scouts, the National Guard. The VFW does a wonderful job running the show and town staff did a really spectacular job, as usual. Parks and Rec staff on setting it up and our street division at putting all the chairs away. It was a great event. I was just so thankful that we had decent weather this year." 17. MANAGER'S COMMENTS "First, as Mayor, you were with us this morning—we are pleased to announce that the first drop box for prescription pills has been installed at our police station. Again, the first one in the county thanks to Chief Price, a grant from CVS, and Dr. Goodfriend working together as a partnership. That is located in our lobby—secured to the wall and medicine is disposed of properly on a regular basis. Second good news is—for the 28th year in a row, the town has received a recognition of excellence for our budget and financial reporting process. We just received that at the annual conference last week that Clark Case attended. Clark did not want to be the first finance director to break that string, so 28 years in a row. Last, tomorrow for those that can attend is our employee service awards ceremony at 11 o'clock right outside in the Rose Garden followed by a very simple lunch downstairs. We have many employees being recognized for their years of service. Two that will be receiving 30 years of service, Tom Mason and Mac Willingham." It was noted that the contingency plan in case of rain for the service awards would be to hold them in the Council Chambers. 19 I Page COUNCIL MEETING May 26, 2015 18. CLOSED SESSION None. 19. ADJOURNMENT On a motion by Council Member Butler, seconded by Council Member Martinez, the meeting was adjourned at 9:45 p.m. Kristen. U stattd, Mayor Town of Leesburg 11 Clerk of': it 2015 tcmin052. 20 I Page