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
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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
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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
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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
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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
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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
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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
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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.
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• 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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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