HomeMy Public PortalAbout2011_tcwsmin0509Council Work Session May 9, 2011
Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Kristen Umstattd
presiding.
Council Members Present: David S. Butler, Thomas S. Dunn, II, Katie Sheldon
Hammier, Ken Reid, Kevin Wright and Mayor Kristen Umstattd.
Council Members Absent: Council Member Fernando "Marty" Martinez arrived at
7:51 p.m.
Staff Present: Town Manager John Wells, Deputy Town Manager Kaj Dentler,
Town Attorney Jeanette Irby, Director of Engineering and Public Works Tom
Mason, Director of Planning and Zoning Susan Berry Hill, Deputy Director of Public
Works Charles Mumaw, Environmental Planner Irish Grandfield, Director of Plan
Review Bill Ackman and Clerk of Council Lee Ann Green
AGENDA ITEMS
1. Work Session Items for Discussion
a. Chesapeake By TMDL Funding Options Presentation by David
Bulova
Wells: one thing I want to highlight real quickly before Mr. Mumaw does his
formal introduction is highlight as we are going to be talking about funding
options the TMDL funding issues dealing with the Chesapeake Bay are fairly
substantial in terms of the cost implications but they also are very long -term in
terms of when they will be implemented, so since we are fresh out of the
budget I wanted to highlight the significant cost implications are not going to
be evident for the first 6 to 7 years. The first phase kicks in, I believe, there is a
five -year window that starts in 2013 and the reduction required in that first
five -year period is 5 We believe there are a number of issues we can manage
within our existing budget, I know that's why, Council Member Hammier
when you have asked whether we have taken this into account, we think we
are good with our financing plan for the budget for that period of time.
However, during that period of time it's going to be important for the Council
to look at what the long -term implications are going to be. There are a number
of policy issues, a number of funding options, and there certainly are some
significant cost consequences. There's also some undetermined factors that still
could come into play, so no decisions are necessary tonight. We are not
looking for any direction. This is part of a longer -term issue that we have
flagged and started talking about and this presents one of the next pieces of it.
We will certainly be following up with Council as we look at public
involvement, public participation, policy direction and discussion from
Council at later times. I just wanted to highlight what we're going to hear
doesn't impact that five -year budget window that we talked about.
Hammler: just conceptually, John, as you are framing the timing from a cost
perspective similar to how one would anticipate any major expense in a
household, you start planning now for what's going to be due whenever it is.
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May 9, 2011
So, are you then assuming that we wouldn't start some fund so we don't get hit
with a big bill in five years?
Wells: that's a possibility and one of the things that we will be doing as we start
working over this five year period, one of the requirements that need to come
out of this first five -year planning window is what the long -term plan is going
to be in terms of those reductions and as we make decisions in terms of how
we might begin to pay for it, we can begin to take those steps. So, there aren't
requirements to change our budget but certainly prudence would say based on
what recommendations Council makes, that's a very real possibility. We need
to decide what we want to do first and then determine how to pay for it and at
what pace.
Hammler: and how to negotiate whatever the trade -offs are, nutrients...
Wells: right, exactly. There are legal issues, there's legislative issues. So those
are all part of the issue. This is a pretty long -range discussion we're having but
this is the right time to be having it. I'll turn it over to Charlie for the
introductions.
Mumaw: good evening. Charles Mumaw, deputy director of public works and
I'm pleased to introduce our speaker for the night, David Bulova. David has
over 20 years experience in resource planning focused on helping local
governments with state and federal storm water regulations. He is a senior
environmental planner for the last few years and has worked with the town of
Leesburg on several projects including the development of the town's initial
sewer plan as well as storm water management ordinances. Also, he has been
working on the Leesburg Airport, since 2003, industrial storm water permit.
He also helped develop the facility storm water plan. He was the
director of environmental services for the Commission. He holds a BA
from the College of William and Mary and a Masters of Public administration
from Virginia Tech. He is currently on the board of the Center for Watershed
Protection and serves on the board for the northern Virginia sewer and water
conservation District. In addition, he has done work for the Virginia House of
Delegates, the Department of Agriculture and Natural Resources and is a
member of the state water commission for District 37 which includes Fairfax
and the city of Fairfax. So without further adieu, I'll have David come up.
David Bulova: thank you very very much. It really is nice to be here and it has
been an honor to work with the town since at least 2003 on their storm water
management issues. As Charlie said, starting back you had to get your initial
permit for your municipal separate storm sewer system all the way up to most
recently and looking forward to assisting with the next challenges that come to
bear over the next 15 years which are likely to be relatively substantial. The
reason I am here is because with the proper planning, it doesn't have to be as
painful as it might be if you waited to the last minute to go ahead and prepare
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for what is going to happen. I did want to acknowledge Mike Rohlband in the
audience with Wetland Studies and Solutions and my understanding is he
came out a month or two ago to talk about the Chesapeake Bay TMDL and
the impacts of the new Virginia storm water management regulations from a
larger, general framework. So what I came out to do today is to give you a
little bit of an update on the status of that effort, but I think more importantly,
to talk more specifically about what is that going to mean for the town of
Leesburg. What does that mean in terms of what you actually will have to do
and then getting to the how do you go ahead and pay for this thing and
establish a process for moving forward in order to do that. It's always been in
your permit and it's always been kind of a fundamental principle of MS4 that
not having the funds to implement your programs isn't an excuse for not doing
it but, it hasn't been something the EPA has been very vigorous about
enforcing. It hasn't been something the state has been very vigorous about
enforcing. That's about to change. This last year, EPA came in and did
unannounced audits of a lot of the larger jurisdictions down in the Hampton
Roads and Richmond areas. They actually, for the first time released articles
and reports that involve fines. For Chesterfield County, I believe that was a
fine of about $130,000. For Henrico County that was a fine for about
$160,000. It's not very much, but what they were doing was sending a message
that they are very serious about these permits and they wanted to make sure
that localities understood that it was important not only to implement but also
to have the funding in order to go ahead and implement those things. I guess
in terms of what I wanted to say tonight, giving a little bit of a timeline for
what you can expect over the next 15 years or so. And then talk about some of
the compliance scenarios and costs that we put together with town staff that
are more specifically geared towards the town of Leesburg so that you know
from a conceptual to what this is actually going to mean for you all in terms of
retrofitting and improving water quality, and then we will go through the
different funding strategies. Just to give you an update on where DCR, the
Department of Conservation and Recreation, is in all of this, when Mike came
to you, we had already gone through and adopted the Chesapeake Bay
TMDL. That was the EPA's job, to adopt this document that said okay,
Virginia, Maryland, Pennsylvania, West Virginia, New York here is what we
need to do to reduce our nutrient and sediment pollutant flows to in order to
restore the Chesapeake bay. That's all they really did, they established a couple
big numbers by watershed and then they turned it over to the states to be able
to come up with a plan to help achieve them. And those are the watershed
implementation plans. So, Virginia has adopted and EPA has accepted a phase
1 watershed implementation plan which is a general strategy for how Virginia
is going to approach the effort of achieving those nutrient and sediment
reductions. What Virginia is working on now, is phase 2. Phase 2 is getting
from more general to how are we going to develop methodologies deciding
what it is that the town of Leesburg is going to have to do versus what will
Loudoun County have to do versus Fairfax versus Arlington, versus what is
VDOT going to have to do, what are our federal facilities going to have to do,
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what our colleges and universities. Each and every single one of those hold
their own permit. So each of one of them is going to be assigned some kind of
accountability with regard to nitrogen, phosphorus, and sediment reductions.
That methodology is still up in the air right now as far as how that all works
out. What is likely to happen though, is that Virginia will come up with a
loading rate per acre per land use per year. Eventually, conceptually they will
say okay for this type of watershed, we will say that every acre of land that
supports this many pounds of phosphorus or sediment per year. Then they are
going to turn back to the town of Leesburg and say okay there's a couple of
pieces of information that we are going to need in order to be able to come up
with what your ultimate responsibility is. The first one is going to be the
division between impervious cover and pervious cover. As you all know,
rainwater when it hits something that's pervious the lot of it sinks into the
ground and you're not going to have as much runoff. Whereas if it's
impervious cover, most of that is going to go directly into your storm drain
system and carry all those pollutants along with it. So that's a very important
distinction that DCR is going to come back with. The other part of this is as a
defensive mechanism for you what are you actually responsible for in your
system. When we talk about your MS4 permit, we talk about your storm water
program, most folks think about your entire town. Indeed we treat your
program, as applying to the entire town. It doesn't make sense not to think of it
that way. Legally, your permit only says you are responsible for storm water
that drains and out falls through one of your storm water pipes, so the sheet
flow that goes out somebody's backyard and directly into a stream, you are not
actually legally responsible for that under your permit. You are only
responsible for the stuff that goes into your system and is discharged vis -a -vis
one of your pipes. So part of the things you would need to do over the next
couple of years, or even sooner, is to actually map out and get a really good
understanding of what are the drainage basins that actually go into your out
falls. That's your legal responsibility. So once you have impervious and
pervious cover, once you know what your legal responsibility is, and once
DCR assigns you what this pollutant loads are per acre, then you'll be able to
calculate here is what you are responsible for. So all of that up in the air, but
that's part of what phase 2 of the watershed implementation plan is about and
those are the kind of things that we will start to get a better handle on over the
next six months to a year. Bottom line is you are going to wind up having
some kind of allocation assigned to you. What do we know about allocation?
What we do know about that allocation is regardless of how big or small that
is, you're going to have to achieve some kind of reduction off of that. So that's
going to be done by land use category and it's going to be done by pollutant
source. I think Mike had that in his presentation earlier and it still holds true
now, which is for impervious cover, for those kind of land uses, you need to
get a 90% reduction in nitrogen, 16% for phosphorus and 20% for sediment for
pervious that would be 6 7.25% and for sediment 8.75 So that gives you a
little idea of the scope of what we are talking about. Remember, most best
management practices don't achieve hundred percent reduction. They get
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anywhere from 20% to 75 to 80 so depending on the strategies that you
utilize, if you get very efficient things in their, you have to treat last of your
land area because you're removing more of that. If you are relying on less
efficient practices, you're going to have to treat war of your land cover. In fact,
we would show you a little bit more of what comes down to what we framed
out for the town of Leesburg you will probably have to retrofit about 17% of
your total land area in order to comply with the state TMDL requirements.
Reid: let's stop there for a minute, if we can. What do you mean retrofit 17%
of our land area? Do you mean private as well as public?
Bulova: it doesn't matter whether it's private or public as long as it is land area
that is already developed that drains to your MS4 system. So if you are in a
position to be able to convince that Walmart or that Target or that commercial
property owner that they ought to install some kind of best management
practice then you can actually go ahead and use that. The simple fact is you
don't have a regulatory hammer to make somebody go back and retrofit their
private property. So more times than not, at least in the short term, you are
going to rely on retrofitting public properties such as your streets and roads,
right of ways or your town yard, or other places the town actually owns
impervious surface.
Hammler: so I don't know enough about the enabling legislation that is
trickling down, but why isn't that part of the policy which would in fact
enforce that for the private owners?
Bulova: it's a matter of not having regulatory authority at the state level and
EPA doesn't even have that regulatory authority rate now at least in the EPA
region that we are in. Now in other regions like region 1 up in New England,
they are actually starting to move towards that direction. Right now those
people who have permits, like municipalities, large industrial facilities up in
EPA region 1, if you have more than 2 acres of impervious cover you have to
get a permit. Once you have a permit, then EPA and state can come in and say
okay in order for you to be compliant with your permit, you'll have to go in
and retrofit your property.
Hammler: okay, so there is going to be some level of action at the general
assembly level to create, if you will, the policies and laws that will require the
private sector to be involved in this as well and kind of the related question is
what percentage of the problem is private versus public.
Bulova: to answer your first question, unless EPA makes Virginia do so I can't
imagine a scenario where Virginia would voluntarily start reviewing private
property and requiring....
Hammler: which is why I asked the second question. How big a problem is it?
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Bulova: in an area like Leesburg, and I can't be held accountable, this is an
educated guess, I would say it's probably about a 60 40 proposition, may be
the 50 -50.
Hammler: so at least half the problem is a private one that we are not even
addressing as a state.
Bulova: when you're looking at your commercial corridor, all that commercial
property, anything that runs off of individual residential property that is
private. In Leesburg, of course all your roads and streets are public, and that
makes a pretty good portion of your impervious surface area. That's one of the
big challenges...
Hammler: what it is, I mean just to call it what it is is unfunded mandates
which passes the entire responsibility down and doesn't tackle the problem and
nobody assigns responsibility for leadership to essentially put the correct
policies in place. Because they're not taking responsibility at the right level of
government.
Wright: so we're going from questions to debates. When I think I'm going to
suggest is let me let you rattle through a little more and if you think there's a
logical spot to ask some clarifying questions, we will do that. If not, we'll let
you get through. I already see we have a lot of time for this so we will let you
get through the presentation and then go on to discussion.
Bulova: I don't begrudge you for asking a policy question, because there are a
lot of them out there. Ultimately, though, localities hold permits and so for
better or worse they wind up being on the hook for actually making those
things happen. In the timeline, the town manager has talked a little bit about
this before hand. Right now under your permit, you are not required to do
anything. The trigger will be when you are up for reapplication, re- permitting,
in July 2013. So when there is something in your permit that says the town of
Leesburg has to do X, Y, Z, you are not legally obligated to do that. But what I
can guarantee you is that come July 1, 2013, your new permit will require you
to do that, so it makes sense to start planning ahead of time. A lot of localities
are starting to go ahead and do that. As mentioned, this is likely to be phased
in over three permit cycles. Those permit cycles or five years, so you have 15
years from 2013, says 2028 is going to be your dropdead date. The first cycle is
going to be relatively easy in terms of capital improvements. That's a 5%
reduction. The next five years is 35% of your total reduction, then the next five
years you have to get to 100 I think the point was well made that you don't
want to lull yourself into a false sense of security and then all of a sudden you
are faced with the balloon payment at the end where you are looking at
millions and millions of dollars of capital construction costs without having
thought through how you're going to stock up for that or bank for it. For your
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first five years, that will be a 5% reduction. That's what's in the Virginia
watershed implementation plan, right now. What you will be required to do
likely in that first five years and probably early on within the first year or two is
to develop some kind of cost spreadsheet our model that shows what are your
ways and means of achieving that hundred percent reduction. So they're not
going to just have you look at that 5% during the first five years, they are
actually going to make you go through and cost out and look and examine
how you're going to achieve 100 They will require you in your annual
reports to show how you are meeting that 5% using specific projects. So your
annual reports will show what specific projects you have implemented and
show what kind of nutrient and sediment reduction you got out of that and
which ones you're going to be doing next year and how you're going to use
that to achieve your 5 But they will make you go through the exercise of
playing what if games all the way out through 2028 to show that you know
what you're going to do and, I think more importantly, what you are likely to
see in your permit is an actual analysis, an internal analysis, of your funding
mechanism so that you come back and actually say yes, we feel comfortable,
we acknowledge the fact that we are going to have to spend this much money
in order to be compliant, and yes we will go ahead and do that.
Hammier: can I ask a quick question? Where are we going to get the expertise
or do we already have it to do this analysis, and run the spreadsheets and
administer the...
Wells: part of it is, in terms of identification of the watersheds and drainage
areas, we can do with existing staff through our GIS capabilities. In terms of
the modeling, that's going to depend a little bit on what some of the rate
numbers are we are looking at. We may have to do that in house or we may
have to get some expertise to work with us. I don't know that we know exactly
what that number is until I see how big the number we will be looking at in
terms of the effort we are going to have to put out for reductions. We don't
know at this point. We have a couple of different ways of looking at this.
Hammler: but presumably, somebody is thinking about possibly looking at
scaling factor. A lot of municipalities will be needing some backup support on
this. Maybe that would be helpful.
Bulova: it would be fair to say, and I can imagine that Mike's shop isn't doing
the same thing, is there is a lot of people working with the Department of
conservation and recreation developing the spreadsheet models to be able to
assist localities in doing this
Wells: the NVRC is actually looking at some issues from a regional
perspective and that could turn into something in terms of resources for the
reason as well.
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Reid: I just wanted to mention that an NVRC got a presentation from a state
official at the last meeting and the thing that really stuck with most of us is that
the state has only funded $34 million to give out to municipalities and
whomever to comply with this which is really not a lot. So, I don't know what
the criteria is to dole that money out. Whether it's based on pollution level,
financial need of the system, if you could elaborate on that.
Bulova: I think which you are unfortunately looking at is granting of cost share
money for agricultural best practice management. You will continue to see
cost share with wastewater treatment facilities. Were we don't have a cost
share program that has any consistent level of support is urban best
management practices. While there are couple of new tools to help you do
borrowing at very low interest rates, there isn't, I don't think you'll see massive
infusions of cash to go ahead and help out with those capital upgrades. In fact
when you look at the Virginia watershed implementation plan that was
released by the secretary of natural resources, the things that they mention as
helping to fund it our storm water utilities, storm water service districts, pro
rata share programs, all things that you would do on a local level.
Reid: it's like Katie says, it's an unfunded mandate.
Hammler: so what's it say in agricultural best practices management, there is
momentum behind...
Bulova: historically Virginia has done a lot to support this. The thing is, those
are kind of low hanging fruit. As far as bang for your buck, you get a lot better
bang for your buck by investing in those two areas. The problem is even
though it's not very efficient to do urban retrofits, it still needed in order to
meet your Chesapeake Bay goals. There's no way to not. The next part, this is
kind of a fun part, were we actually sat down with town staff and utilize the
spreadsheet that is a draft spreadsheet that DCR has developed to basically
start allowing localities to play those what if games. They were kind enough to
let us have that to play around with. The things I'm showing you here are still
kind of order of magnitude but starts to really put some meat on the bones to
show you what it is that the town might be facing, are what we might actually
need to do to comply with the Chesapeake Bay TMDL. What it is is a
spreadsheet, it comes in three parts. The first part is the part that is primarily in
this presentation where DCR gives you your loadings per acre. We have added
in some assumptions about how much impervious area there is in the town.
We have added Smith assumptions about how much of your town actually
drains to your municipal storm sewer system so what is the regulated part.
Basically the spreadsheet spits out a number and says okay town of Leesburg
based on those assumptions this is how many gallons of nitrogen, phosphorus,
and sediment you have to reduce. The second part of the spreadsheet, shows
the spreadsheet actually populated for Leesburg, contains all this different
storm water best practices that are out there and could be basically used to
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meet the requirements. So we went through and started looking at what are
some possibilities that we have in town. I'll talk a little bit about that process
and what we came up with. At the very end of it says all right if you had to
reduce this much, you have installed these best management practices. If you
see all red over there on the right -hand side, that means you have achieved
your reductions. This is what we use to come up with a scenario, at least on
paper, that would be used to show DCR and the EPA that you have met with
due diligence in terms of meeting Chesapeake Bay TM DLs. What are some
of the advantages the town of Leesburg has over other localities based on these
issues. Number one, you have a robust street sweeping program. Most
localities see this as some what of an aesthetics program, they are very popular
with residents usually because they make things look good. Most people don't
think about the fact that they also serve as a water quality best management
practice. So at least for the time being your street sweeper program is eligible
for credit to be able to meet the TMDL requirements. Another big advantage
that you have is you adopted your water quality requirements relatively late. I
think those when into effect in 2007 or so. So most of the facilities you have
out there, all your dry ponds and stuff like that, those are for flood control.
Those are easy pickings. You can go back in there and retrofit those dry ponds,
because you already have space, they have already been built, and you can
retrofit those for water quality. So you take a look at your situation where you
have several hundred acres treated by these flood control facilities that you can
go back in and relatively easily retrofit versus older areas like Falls Church in
Alexandria that do not have that luxury. They are a lot denser, they don't have
areas where these are already in place so it makes it more of a challenge for
them. That's another advantage. The final advantage you have you have
control over most of your roads. In places like Fairfax County, VDOT has
control of those roads. There is a very strange interplay when you look at
VDOT roads going into Fairfax County system and the Fairfax County system
going into VDOT roads. Often times they go in and out of each other several
times before they wind up getting to a stream. At least for you all, a good
portion of your pervious cover is roadways and you actually do control them.
That is a place where you can install best management practices. The
challenges are, we don't know what is going to be required for street sweeping
in terms of being able to take credit for it. It's up in the air as far as how
frequently you need to sweep and what kind of technology would have to use a
sweep in order to get credit for it. We will know that hopefully in the next year
or so so you will know whether it is cost effective or efficient to ramp up your
program and take credit for it.
Dunn: maybe if we sweep enough they can owe us money. We should shoot
for that.
Reid: it's nice that we do the street sweeping but we learned in our budget
discussions that VDOT sweeps the County streets only once a year. That's
where the lion share of the silt and stuff is getting into the bay and probably
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Fairfax County is in the same boat. Yes, it's nice that we have this but what
does VDOT or the County do about their street sweeping? You are ignoring
the big picture.
Bulova: VDOT and the County will have to go through the same exact
process as we will have to go through and they will have to do some sort of
cost analysis to decide whether they want to do more street sweeping, if that's
the best way for them to meet their requirements, or whether they're going to
go and retrofit their roadways with retention or other kinds of facilities to
control pollution. They're not going to get off the hook. It's just figuring out for
each permit holder what is the most efficient way for that individual locality or
holder to meet those requirements.
Reid: well I would like to see by what percentage you reduce the risk with
street sweeping. I don't know if there's anybody who can quantify that. I would
love to know.
Mason: we keep track of the amount stuff that the street sweeper picks up an
empty it, loaded it into trucks and haul it to the landfill and the tons of
material are weighed. So we don't know how much phosphorus and nitrogen
is in that, we don't know exactly, but we have a way of measuring what we
take off the street.
Dunn: I have a follow -up question. I was actually going to ask you later but it
kind of dovetails into what you just covered. What would be our requirement
for any... What is our portion of any County permit requirements since we're
part of the County.
Bulova: you have separate permits.
Dunn: so we're separate. The only impact we would have is if there's a fine
that's going to be paid by tax dollars which we will have to pay. But we would
not have additional requirements that the County has.
Bulova: Correct. A couple of other challenges all localities will be required to
develop nutrient management plans if you apply fertilizers onto locally owned
areas. If you agree that is happening in Leesburg you will have to develop
those nutrient management plans. The thing is, they are very effective and
actually get quite a bit of production. The bad thing is, you don't get to take
credit for it because they assume you're going to do it. Circling to do it, you're
going to spend money to do it and you're not going to get any initial credit.
You don't get any credit for best management practices that were put into
place before July 2009. At least that's where the current line is drawn. The idea
is that the Bay model assumes what was in place before July 1, 2009. That's all
part of that calculation, so you don't get to take credit for anything you've done
before that time. Anything you've put into the ground after that time, you get
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to take credit for. You probably won't get to take direct credit for stream
restoration. I know this is a very sensitive issue and some places like Loudoun
and Fairfax where they would like to do a lot more stream restoration. The
problem is, is that streams are not technically part of your MS4. Remember,
you are responsible for your discharge point and everything that comes before
that discharge point. While that stream, is down from that discharge point, the
waters in the state, it's not technically part of your permit so while DCR is
really looking for ways to help take credit for that may be through some kind
of trading program, at least for the time being you're not going to get credit for
stream restoration. That's a real shame because that's where a lot of the
nutrients and sediments are coming from. You also don't get credit yet for
urban stream buffers so for all the localities that have taken the time to employ
200 -250 foot buffers, there isn't a way to take credit for that yet either. That's
also something that DCR is working on. As far as one potential control
strategy, like I said we set downward looking at the town of Leesburg to figure
out what a potential approach might be over 15 years. We found one that
would get you into compliance in 2028, so we use that basically to cost out
what it was you would have to do to do that. For instance, we are assuming
you can take credit for your street sweeping program. You might have to ramp
that up a little bit. Right now we are assuming you get to take credit for that.
Tree box filters on a quarter of your road right of ways. So you can see a little
fixture that looks like any other inlet except it has got a tree and filter media
where the storm water goes in and filters through before it goes out into your
storm drain system which removes pollutants and sediment. That comes out to
about 300 acres you can treat with those. You have a lot of dry ponds and
flood control right now but don't count towards water quality. If you were able
to convert 40% of those realizing some of those aren't going to be convertible
just because of their location, that gets you an additional 516 acres. Then if
you look at installing water retention rain gardens, on another 106 acres of
land, that gets you where you need to go. It's a pretty big portion of your
locality, and it's a pretty big effort, but there reasonable steps you can take to
go ahead and get there. We are looking at the concept of forest pavers as being
one thing you could do where you go and rip up existing parking lots and put
in permeable pavers with permeable pavement. The cost per square foot of that
is kind of all over the place. We are looking at conservative estimates and
threw it out of contention as being a cost efficient way of meeting those
requirements. So again, as more people are starting to do these, but cost per
acre or the cost per square foot will come down and might get back in there for
contention. We didn't use it at this time.
Dunn: John, where do we have 106 acres in town.
Wells: we are not looking at just one location.
Dunn: I'm just talking all over town.
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Wells: you're looking at easements in terms of doing that where we have storm
water easements. In terms of pervious surfaces, we will be looking at all of our
facilities.
Dunn: I'm talking about point number four, installing rain gardens on 106
acres.
Wells: you would be looking at all of your park land, at a minimum.
Hammler: we have been trying to cheer up the whole Edwards ferry area. I
could see a garden would look very pretty there.
Wells: there are thoughts and alternatives, you are not going to pick any one
individual location. It's going to end up being a broad number of areas. In
order to integrate this into some areas we can do this and actually end up with
something that would look better in the end. I think that's what Council
Member Hammier is alluding to.
Wright: we do have a couple of parcels, I know when I first got on Council,
we had a couple of why do we own that. An acre here, half -acre there. There
is a half decent sized parcel of the corner of Plaza and Market right there by
Merchants and it's basically half of the lot we didn't use to build the road from
the restaurant that used to be there. There are couple and once you start
adding those private sector stuff that comes in, if you get someone to do a
several acre rain garden, I assume that counts. Whether it's on private or public
land, it's a matter of getting to these totals by 2018.
Bulova: it's frustrating when you have to remember, if you redevelop then you
can get credit. If it's new development, you actually are going backwards. So
that's kind of the tough part. Any time you develop you are adding to the pool
level even if you are utilizing the best management practices. How you deal
with that is the real issue.
Reid: but tree planting is not part of this. On your spreadsheet you mentioned
on page... You mention grass buffer, tree planting, number of trees and that
reduces a lot of the nitrogen and phosphorus. How come that's not listed as
one of your control strategies?
Bulova: it wasn't part of what we called out as a control strategy for what we
did here, but is certainly something we could look at in ultimately determining
what makes of best practices strategies that we will employ. If you have
enough land area that you simply want to re- forest, then that's also a
possibility.
Reid: how about along the highways or along the roads, would that help?
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Bulova: potentially, I don't know that DCR has really thought through the
criteria for what would count, whether as Street trees would count, or whether
it would have to be something where you actually had storm water sheet flow
going through. All those BMPs are potentially up for grabs. They are all
potential things that are options.
Reid: that looks like a street tree in that drain.
May 9, 2011
Bulova: that is a tree that doesn't die when it gets all sort of nasty stuff poured
on it.
Reid: that might be a way for us to add street trees and deal with this
requirement because I have long been seeking a way to add tree canopy in this
town. That might be the way to do it.
Bulova: Let me just go over really quickly kind of what this means for costs.
What this means, or how much does this cost per acre to actually do, there is a
lot of different numbers out there and that's going to make it or break it for you
is how much does it cost per acre to actually do these retrofits. There are some
people who estimate that it's going to be much higher, some people estimate
that it's going to be a lot lower. Based on some real life examples for the City
of Falls Church, installing these things and triangulating that with some work
in Fairfax County, tree box filters are about $80,000 per acre of impervious
surface, a bioretention facility is about $100,000. Pond retrofits based on some
numbers from Fairfax County are your most efficient where it is about $10,000
per impervious acre that is being served. The number, though, comes out
pretty darned big and that's a little over $34,000,000 over a 15 year period. So,
if you are thinking about what it is that you need to have socked away in the
bank each year in order to achieve this, that comes out to about $2.3 million
annually. We didn't factor in there the cost of operation and maintenance
which will be an additional on there and since most of these will be facilities
on public lands, that is something that you will also need to consider since
now you will be responsible for going out there and making sure they are
operating in perpetude. The other big unknown out here and this is something
very explicitly put in the Governor's Watershed Implementation Plan, is the
role that pollutant trading programs will have. I think the Governor and
secretary saw some of these preliminary numbers and I think they were just as
nervous about them as you all probably are. So, they did add it into the
program, a strategy for nutrient trading. It has not been developed yet in terms
of how they want to go ahead and do this but it's a very important part of the
approach to managing the costs of some of this. You could, hypothetically as
the town decide instead of doing 300 acres of bioretention, we are going to
purchase credits from a new wastewater treatment facility upgrade were we are
going to purchase credits from a farmer who has gone ahead and fenced out
his cows from a stream were put in some other kind of nutrient management
program or facility. The downside is that you all are going to be paying for it,
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Council Work Session May 9, 2011
management comes out of your general fund, it's taxed based. So each year it's
competing with everything else out there, fire, police, everything else that you
have to worry about and so it goes up and down as the needs arise. The
question really is, do you change it from the general fund approach to the
enterprise approach much in the same way you treat water or wastewater right
now which is fee for services. You've graduated from being something that's
funded through taxes that goes up and down to something that you actually
figure out what you need and charge and backfill accordingly. The thing about
an enterprise fund is once it goes in there, you can't spend it for anything else.
It provides you that level of certainty to be able to plan in advance for program
that will get you into compliance. The question you need to ask yourself, is do
you want to make that leap from general fund to enterprise fund and if so what
is the correct mix of revenue sources to populate that enterprise fund. What I
want to start off with and it can be my theme for the rest of the visit, success or
failure is all in the process. If you are looking at something as big as $34
million and you need to come up with a way to fund that the only way you're
going to do that and succeed is by ensuring that you involve the community
the whole way along. So if you think about this, it's a matter of developing a
compelling case and moving forward as a community and deciding yes, this is
the best way to do it. It's an important process and often takes a while to do
that but having gone through several storm water utilities and storm water
funding program development processes, your chances of success are greatly
increased if you start with public education working through the business
community first, and then develop the business case for what you're doing
before you actually talk about what you're going to do to fund that. Again, the
funding options are just part of the larger continuum of issues you have to look
at. Even before you get the funding options, how are you going to pay for this,
you need to involve the community and you need to involve your stakeholders
on what is your vision and goals, what are your priorities, what is your level of
service that you're going to be providing. That way you have different options
for priorities. Do we give a basic level of service, a medium level of service, do
we get really aggressive with that. All those things are necessary before you
start talking about what are your actual funding options. The first thing people
are going to ask is why are we doing this, certainly there's got to be a better
way of doing this than actually raising revenue. We were asked to do a process
in the city of Roanoke where they wanted to fast -track it and we told them you
usually work with the stakeholder group first. We don't recommend going
forward that fast. They said well what we really want is a program that can be
implemented in nine months. We said we can do that but what ultimately
happened is we got a real solid process and when it finally got up to city
Council, and they started asking questions, the next question was how do we
bring this back out to the community so we can get them invested in the
process.
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May 9, 2011
Reid: question for, I guess John or maybe Kevin, does this rise to the level of
maybe doing a town plan amendment or adding it to our environmental
program?
Wells: the short answer would be yes, something this expensive we may find
having elements in the town plan as well as other type of documents, certainly
other regulatory requirements should speak to different procedures since we
mentioned best management practices going forward do credit this effort. So
there may be regulatory changes that could be helpful for the private sector
participating in going forward based on how development occurs. Again, that's
where I think having the vision of laying out a variety of options is going to be
important for council because this all won't reside in one place. We will have a
plan to address this, but success could be found in implementing a variety of
different issues. Maybe it's a change in the DCSM, or other regulations.
Reid: but we're doing a town plan amendment process now, so is this
something we should try to slip in there now?
Wright: I had made the note to myself that this presentation or a combination
of the two really needs... I mean this is starting to mature to the point that we
need to get it to the EAC, the watershed committee and planning which were
my top three. That's probably going to need to grow from there, but Ken's
question also highlights as we have the opportunity of looking at our policy
documents, anything we can do that is getting us ahead of the game, we have
the opportunity to get a head start before the next permit... anything we can
do to do that, I think we should be doing.
Reid: the town plan is our overriding policy document.
Hammler: I think it's going to be important to conceptually create the
framework for what the plan is for but this is truly what I can't get my brain
around which is I'm trying to understand even the concept you mentioned,
David, the enterprise versus general fund and the fact that you kind of need to
figure out what you need and backup from there. We had a philosophical work
session discussion even about how we bill for the sewer because guess what
you can't measure exactly was going into the sewer so you if you can't measure
it you really can't price it out which gets back to the concept of ultimately
determining the level of responsibility of the sources and I don't think that's
unanswered which is yes you can measure the impervious surfaces, yes we
know we have garbage that we pick up off the streets that were getting some
little credit for, well what's in the garbage...we create incentives to reduce the
amount of garbage that's impacting the nutrient levels. Kind of take a few steps
back because what you're asking us to do from a policy perspective is to look at
how to either to increase revenue or reduce essentially what's causing the
problem and preferably I would think we want to try to create carrots versus
sticks and we have such limited capability as a town to essentially come up
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with a solution which is you could ask yourself, well, if most of the trash is
coming from, again, using the sewer analogy that's the concept we came up
with, McDonald's doesn't itemize exactly what they are going to have you pay
because of the trash, or in this case the wrapper that goes into the product, you
just paid for the product in whole. Well guess what, there's a cost to throwing
the wrapper out the window that goes into the street that we pick up that
causes the nutrients that causes you know these things that are now going
downstream and polluting the Chesapeake. So at the national level, maybe
there could be a tax on wrappers for fast food if that's a significant problem
that's causing ultimately the nutrient levels to go up. I just don't know why the
national government is not getting more involved in determining what's
happening that could have a greater impact on individual behaviors that could
have a much more significant impact and ultimately increase the revenues that
could come back to us to help us. Is there a more practical way that we can
come up with, or what other municipalities have done around the state to
determine how to increase revenues, I guess is the ultimate question.
Bulova: let me kind of walk through the two big options.
Wright: before you start that, I think Marty had one other point.
Martinez: the question I had had to do with the sources of financing and the
town raising taxes or how we generate revenue to pay for this. Does this also
mean that anything that's not covered... My concern is about the County too
and how is that going to... We're paying our share and now the county wants
us to pay for their share. How is this being approached? I'm sure we're not
going to be the only locality that's going to have that issue of us paying for the
town of Leesburg and us paying for the rest of Loudoun County.
Bulova: well, I'll tell you the issue does come up. Fairfax County, for instance,
they have a service district approach which means they have a surcharge on all
real property tax, and of course you have towns within that county like Vienna
and the town of Herndon. Those residents pay into that county fund but
Herndon and Vienna also have their own storm water programs that they are
separately responsible for. How do you work with the county and the towns to
make sure that somehow the funding is coming from those towns is also going
back and helping them to meet their permit requirements. Depending on how
Loudoun decides it wants to move forward with funding its storm water
program, that is or is not a problem. It's more of an issue if you're going with
real property tax as opposed to a storm water fee.
Martinez: so the County itself is going to dictate how we are going to do this.
I personally... There is this issue about credits and all this other things you've
been mentioning. Sorry I came late so I didn't catch all the briefing but I was
trying to catch up. My question is, I don't want to double pay for something
we don't have to.
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Bulova: the County does not get to dictate. But you raise a good question
which is making sure that if the county decides to fund their program in a way
that funds are also coming from the town of Leesburg that also gets used back
on the town of Leesburg to help meet your permit requirements. That's an
issue that's come up in other localities.
Wright: just one clarification, when you're saying funds coming from the town
of Leesburg, you are meaning if the county funding source is a general fund
applied equally to all residents, those funds are coming from, Leesburg
residents not necessarily the town of Leesburg government.
Reid: I'm going to direct this to a state delegate, this might be the opportunity
to get General Assembly to give more money to VDOT for street sweeping. I
mean, if you've got a federal requirement here, it that obviously reduces the silt
and start going into the bay, and if we can take credit for it, there may be needs
to be an overarching effort of the counties, Prince William and Fairfax
included, to increase the street sweeping schedule. But that means money for
VDOT. Do you think there's any possibility that we could get... If we can get
a dedicated funding source for roads other than borrowing, is this an
opportunity to get dedicated funding for street sweeping?
Bulova: I'm not sure...
Reid: they've demonstrated it works. Every County could clean up the bay.
Butler: it doesn't count for that much.
Hammler: so this will be the last time I try to say this. I'm trying to understand
what the real source of the problem is. If it's something such as impervious
surfaces, to Ken's point, while why are we not asking the question and what
are we doing to reduce... Increase multimodal transportation at a higher level
versus the way that we build roads which are such a significant part of the
impervious surface. What the rationale is for even a real estate tax is it that the
homeowner has a driveway that's an impervious surface or it's just an easy
thing to do?
Bulova: the problem is there is a very small nexus between impervious surface
cover and contributions to storm water treatment.
Hammler: and that's just when it rains, no matter what, it just...
Bulova: when it rains, if it's soaking into the ground, it serves as a sponge and
infiltrates most of that. If it's impervious surface, everything on there is
sweeping through at a very high volume velocity and it goes directly into the
streams.
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Hammler: which is why I asked the question about, you know it's more than
just street sweeping, it's the challenge that we get to the core issue which is are
we willing to ask ourselves as a state how and why we're building roads the
way we do and what kind of incentives are we willing, at the state level, to give
homeowners to change the structure of their driveways, federal tax credits and
things that are way beyond the scope of what the town can do, maybe raise the
litter tax.
Bulova: and moving forward we will be talking about new development and
redevelopment. Part of Mike's presentation last time is that they're are going to
be much more stringent's storm water management regulations to force you
into thinking about it that way. You're going to have to design in a way that
minimizes impervious surface cover and disperses that impervious surface
cover so that it maximizes the potential for water to soak into the ground. The
problem is, the majority of development in Leesburg and most of northern
Virginia was developed long before anyone thought about water quality and in
a lot of cases, even before volume management. That's the difficult part, how
do you retrofit existing development? You're right, going on forward the state
and the federal government are developing tools, very strong tools, that are
going to make you make sure we're not repeating the same problems in
creating an even greater problem in the future.
Butler: just for our audience, what's the MS4 permit that we have actually for?
What does it allow us to do?
Bulova: well, the MS4 permit right now is centered on six control measures.
The point is to control or reduce pollutants by the maximal extent practicable.
That's not very well defined as it's basically a point where you say we can't get
anymore reasonably. In order to demonstrate that you've done something to
the maximal extent practicable, you have to show as part of your permit how
your meeting six minimal goals.
Butler: maybe I'm not being clear, backup about three steps. What's an MS4
permit?
Bulova: basically an MS4 permit is something that came out of the Clean
Water Act that regulates your storm water discharges in the same way that
they would regulate the point source discharge.
Butler: why do we have one, why isn't it covered in the county's?
Bulova: the County does have one, but you are a municipal operator for the
system. You are responsible for it. So if the County actually controlled your
roads or otherwise you would have to have it separately. Because it's your
system that you manage, that's why you have a permit.
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but you don't get to see any of the local benefits. That's a policy decision that
the town Council will have to make eventually which is do we go ahead and
spend the money here locally and it's going to cost us more or would we rather
take that money and send it elsewhere and simply take the credit for it.
Hammler: for example, how would we actually see the benefits locally?
Obviously, aesthetically we would although I'm still trying to understand other
than certainly we have been trying to find the funding actually to do some
aesthetic types of things like these tree box filters and these lovely ponds here
that could go nicely into some unattractive intersections around town where
incidentally there are very large big -box stores and very large impervious areas
dealing with gas stations, but I'm trying to understand the connections where
the big source of the problem really is like the agricultural issues in
Pennsylvania and quite frankly the way we build streets and highways all over
this multistate area and the fact that those things need to be fixed to really
impact things in a dramatic way and the fact that we might be able to do some
of these lovely things that will cost us quite a bit of money which we would be
happy to do because of those benefits but where else are we going to see the
benefits locally?
Bulova: I think you've hit on part of the issue on why EPA was going to allow
a trading program for things like nitrogen and phosphorus because where it
becomes a problem quite frankly is in the Chesapeake Bay. Your problems
here mostly are volume and velocity of storm water and you're not allowed to
trade those things away. So you're going to have to do those things locally
because EPA and DCR and DEQ do not want to see more blown out streams
or flooding problems. But, in terms of the rationale for trading, yes most of the
impacts are downstream. Again, that's why trading is a potential option as
opposed to doing things locally. So, moving on to the funding strategy, the one
thing that we do know is that the town will have to develop some kind of
funding strategy. In phase 1, the larger jurisdictions that are starting to go for
permit renewal right now, it's very explicit. They will need to come up with
some kind of funding strategy to demonstrate that you have the physical
capability to implement what you have to do. The watershed implementation
plan also comes up with some helpful things and encourages more utilities and
service districts to use pro rata share programs but as it was mentioned earlier,
these are all things that local governments could do. It doesn't allude to the
idea that there's going to be a lot of state or federal funds. Your challenge is a
relatively short timeframe for making the decisions. As the town manager said
that doesn't mean you have to make decisions tonight. Or in the next six
months, but because it's such a large amount of money you're going to want to
make sure that sooner, rather than later. You're making decisions that will
ensure you will have the funding necessary to plot out the strategy for capital
improvements. The key question that you need to ask yourself, is do you
change your basic philosophy with regard to your approach to storm water
management. So right now, most of your funding for storm water
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Butler: okay, so it's because we control our own roads?
Bulova: the roads and the drainage system.
Butler: so what if we, and don't take this seriously, what if we plugged up all
our storm water drains, would we have a problem?
Bulova: you would have a different problem. But you would not have to have
an MS 4 permit.
Butler: so if all the discharge went into the streams, we would only have to
worry about streams, right?
Bulova: if everything was sheet flowing into streams, if there was no storm
water management system, then you're right it becomes part of a load out issue
which is unregulated. In parts of the rural County there are places that don't
have storm water infrastructure and that's not counted.
Butler: that's something we might be able look at for some portions of the
town. So let me understand, the five year clock starts 2013. So we have till
2018 to get to the 5% of our goal and we have another five years to get to an
additional 35% of the goal and then another five years to get 100% of the goal.
When we had a discussion of couple months ago, it sounded like we had a
surplus of phosphorus credits or something, but now this is showing that we
have to reduce phosphorus rather than have us all rated below the target that
we needed to be at.
Mike Rohlband: you have a surplus of credits in your wastewater plant, so
one of the things that David mentioned, the trading possibility, the first thing
you use is your trading capacity you already have in your wastewater plant
because you luckily own it.
Butler: so we can use the wastewater plants credits to solve some portion of
this problem?
Bulova: you could, as long as were very certain that you're not going to need
to have that capacity, otherwise your trading something you're going to need.
So before you do something like that just make sure you're not you're not
boxing yourself into a corner.
Butler: so the problem is, if I stayed publicly that I don't think we're going to
need all that capacity, then they could pull the permit or reduce it. Potentially
Bulova: well, you have a certain amount of capacity in your wastewater
facility and that is plugged into your Chesapeake Bay model and I'm not sure
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Council Work Session May 9, 2011
how the mechanism will actually work between point source and non -point
source discharges, but once you've traded it that's a permanent trade, there's no
get backs. That's why you need to be real careful about what you're going to
sell or trade if you think you are going to need it to accommodate future
growth.
Butler: so the last question, is a two -part question. So any new development
that creates impervious surface or reduces trees or other vegetation is going to
be negative and make this a harder problem to solve?
Bulova: right, and it also depends... The degree to which that is a problem,
depends on what kind of storm water regulation or requirement to adopt,
because there's a state minimum standards but Virginia law also says you can
go above and beyond. So for instance, you can have a development that is
going to get you to the state minimum standards, and then as part of your
regulations you can say you have to go even further than that and require a
minimum of purchase of offsets or do and off -site improvement. I don't think
I'm misspeaking, but there are ways to make it more neutral than that. But yes,
generally if you are developing an existing forest area or existing pasture area,
it's going to be tough to go ahead and develop it in a way where it presents no
impact on water quality.
Butler: so it is possible in the state code that we could, for lack of a better
term, require that any new development has to be neutral or better for this
process.
Bulova: yes but you'd make some people unhappy. State law says that your
storm water program can be more stringent than the state minimums.
Butler: all right, thanks.
Dunn: quick question, your $34 million estimate, is that today's dollars or
inflated dollars? So that's not accounting for a 5% inflation rate that's going to
make that number be almost double. So, were really talking about in 2030
roughly over $50 million, even more than that. That's encouraging.
Wright: I'm going to go ahead and highlight that we have a 15 min. warning
to the time we had outlined for this. If you can go ahead and continue through
your presentation, and get to the conclusion. We will hold the remaining
questions till the end.
Bulova: okay, so we got to the point where you look at your funding options
and there's going to be secondary and primary funding options. Secondary
options are things like grants or service charges and fees or limited cost share
or stuff like that, fines. Those are going to pay for little pieces of your program
but what it really comes down to is how do you pay for capital improvements
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for your storm water program? There's really three ways you can do it. It kind
of narrows your options down. You can continue to rely on your general fund.
You could do a storm water utility fee. Or you could do it real property tax
based service district. So the final two I wanted to talk a little bit about. What
the mechanisms are and some of the pros and cons of those two approaches.
Each of them have been done in Virginia. Storm water service districts have
been around for a long, long time. It's only been recently they have been used
for storm water management. I guess Arlington County was the first locality to
go ahead and use it for this It's based on part of the code of Virginia that says
you can establish a service district and added onto an existing tax or even
establish a new tax to pay for the services that need to be provided. In
Arlington County, the city of Alexandria and Fairfax County the way they
have done that is simply add an additional amount on to their real property tax
and turn that into what is funding the service district. The service district is still
an enterprise fund. Once it goes into that enterprise fund you can only use it
for storm water. So there is a link in that there is a tax for the services you're
getting, but there's no actual nexus, there's no rational nexus between the
service you're getting, the programs you're implementing and allocating funds
based on the value of your property. A utility fee, on the other hand is a fee for
service. Much in the same way you already pay for water and sewer. So this,
plus any other revenue is put into an enterprise fund and it's the same way.
Rather than being based on something like a property's value, it's usually based
on some measure of the impervious cover that you have on that piece of
property which shows you what the relative contribution is to the problem
with storm water. There's ways of making it really simple, there's ways of
making a really complicated. We can help you do either one, but it essentially
is a link between impervious cover and the services that you're getting. A
typical storm water fee structure, and there's lots of ways to go about this,
typically what a locality will do is we'll set a flat rate for single family detached
residential units. That's because in most localities there's not a huge difference
between single family residential. You're talking about the difference between
a couple hundred square feet. It's not worth the administrative cost of going in
there and measuring each single property. So what you do is develop an
average for what the impervious coverage is for one of these pieces of property.
They call that an equivalent residential unit. So in a lot of cases that will be
1700 square feet. It could be 2000, it could be 2500, but all your single family
units are charged an equivalent residential unit. Everything else is actually
mapped out and is a layer on your GIS that shows how much impervious
surface covered to have on your piece of property. Then you bill in ER units. If
you have a commercial property that has 9000 square feet, you were ERU is
3000 ft. Will that would be 3 million units and you'd multiply that by
whatever rate you come up with. So that's a simple way of doing it, there's lots
of other ways of treating that. Some localities will go through and get real
complicated and look at the ratio of impervious coverage to the amount of
pervious coverage. So even if you have a lot of impervious cover if you have a
lot of pervious that's going to have a lot less impact than if you have the same
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Council Work Session May 9, 2011
amount of impervious cover that is wall -to -wall and drains directly into the
storm drain system. Most of localities keep it relatively simple. In Virginia all
these things are done. Back in the early 1990s when the federal Clean Water
Act required larger jurisdictions to adopt storm water permits, a lot of them at
that point took the opportunity to implement storm water utilities. You can go
ahead and see that's mostly Hampton Roads but you also have the city of
Staunton, you also have Prince William County, city of Richmond just
adopted theirs last year. Three localities have embarked on storm water service
districts, so rather than have an impervious based fee, they just tack on
something to the real property tax. That's Arlington and Alexandria and
Fairfax County. Both of them can generate substantial amounts of revenue and
so from a revenue generation standpoint those are one of the thing you should
go ahead and do. Again, if you wanted to move forward, and you decided you
didn't only use your general fund as your funding mechanism, and you wanted
to check the enterprise fund approach, where do you start? Well the place that
you usually start is a funding feasibility analysis. What that does is it starts out
with what is your public outreach plan. How are you going to get the
stakeholders to the table, how are you going to communicate to the citizens
and businesses, how are you going to identify the policy issues and problems,
and potential roadblocks. How do you get everybody involved in this
conversation? Usually, you approach it by putting together a watershed
advisory committee or a stakeholders advisory group, maybe about 10 to 20
citizens, and they help guide you through Democratic questions. Mike actually
had the pleasure of sitting on one of those things. They help guide you through
the different kinds of questions that you are likely to face to build a compelling
case for why is this needed. At the end of that process, if you can't get those
folks to be advocates for your approach, then you're in big trouble. If you can't
convince folks who were willing to sit around the table and eat and breathe
storm water management for nine months, you haven't done your job. Those
are usually folks that go out there and talk to the community and say why this
is important. The other part of this, and this is in addition to the public
outreach, the other part that is really important anytime you look at any type
of funding source whether you're involved in a service district or utility, does
the program actually drive the rate. Don't underfund the program. So if you
say you need x for the program to meet compliance in order to meet public
expectations, and you don't have the funding for this you're setting up
expectations to be failed and your citizens are going to be very unhappy. So
you need to take the time to look at what you are doing with your current
program and you need to review the organization and look at what the
requirements actually make you do. What are you going to be accountable for
and what are the citizens going to expect out of your program. Look at the
gaps between what you're doing, what you have to do, and come up with your
levels of service and present your plan. Now if you're planning program is too
big and you say wow, I can't possibly support that as a Town Council member,
you have to cut the program back. Don't get yourself into a situation where
you have a program that you said you deliver, which you are not actually
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going to have the funding to do. If you decide to go the route of the storm
water utility, if you decide you like the idea of matching impervious cover with
the service fee then you go into the next phase. So you built your case, you
built your program, and then you get into the technical aspects of what a utility
is all about. Things that you need to consider are, are you going to keep having
your existing program funded through the general fund? Or are you going to
have the whole thing switched over to the utility fund and there are some
localities that like the idea of shifting it all over and then that money could go
to other things or go to a reduction in your real property tax. Their other
localities that say we need to make sure that our new funds... That people can
see their bang for their buck and they're not going to like having something
being shifted from one fund to the other fund because it's looking like a sleight
of hand. Financial factors, what are you going to do about bad debt? Reserves,
are you going to establish a reserve to deal with emergency situations? Do you
want to use the funding for revenue bonds and how are you going to do that?
Is this going to be tied to your property tax bill are these going to be sent out
on your water and sewer bill? Because it's often times much more easy to put
this on the property tax bill, but then it looks like a tax. On the flip side, there
isn't good matchup on where your water hookups are and where your
property's are and so that makes it more complicated. Do you want to send it
out on your water and utility bill but then it looks like it's a fee. Again, you
need to go through the pros and cons of something like that. Rate policy, once
you establish what your utility rate is, do you want it to be relatively stable
over a long period of time? Do you want to slowly accelerate over time? What
approach is best for the town residents. Then my favorite, this is the part that
most advisory committees spent two or three meetings on, gets to your point
on incentives, using a credit policy. Because one thing that utilities do allow,
that often times other funding mechanisms don't allow is you can get a credit if
you are implementing something on your property that provides a benefit to
the public system. So if I installed a storm water best management practice on
my property and am maintaining it, most localities, a lot of localities will give
you a credit on your utilities. So it's an incentive to maintain it, and it's a
recognition that you're doing something good that other people aren't doing.
The caution is, is that it's your program and you're actually shifting the burden
of the cost to everybody else. So you're kind of rearranging the deck chairs, but
it is a powerful incentive to have people step up to the plate and do things like
that. The legislation for storm water utilities just got changed this year to
provide additional flexibility for credits and so it used to be it always had to be
structural, but now, for instance you could have a credit for somebody who
was engaging in street sweeping. So you want to provide a credit for your big
box stores to engage in street sweeping. You could say you get 10% off of your
rate if you do that. If you and your staff participate in some kind of public
education program on nutrient management, you'll get credit for that. Prince
William does that. Lots of different flexibilities in there. Pros and cons of
different approaches. Both of them will generate your revenue that you need in
order to meet your requirements. The big difference is with the utility fee you
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Council Work Session May 9, 2011
can equitably distribute that, there's a nexus between what people are paying
and the services that they're being provided. The service district does not have
a relationship between a property's value and what is going on up there.
Utilities, you do have credits, the service districts usually not. Both of them are
relatively flexible in that you can go up or down in the rate as your program
needs it. Both of them are relatively stable sources of funding. Storm water
utility fees to require that you have an impervious surface layer, so you need to
spend the time and resources to do that. You don't need to do that with a
service district. Utility fees, both of them require public education and
outreach because a utility fee is often something different that requires a little
extra attention in that regard. The last thing is who pays, what is equitable?
Remember, if you don't do a storm water service district, those properties that
were exempt from real property taxes also don't pay into a storm water service
district. So an example would be a nonprofit organization for church with a
large parking lot. Under the service district model, they contribute to the
problem, the storm water, but they don't pay under a service district model
whereas under a utility they don't pay real property taxes, but because it's a fee
they do pay into the fund for storm water utility. So it's more equitable, but it
also creates, again the need for outreach to the community because this is
going to be something that's going to be new for a lot of folks that never had to
pay this before. I'm going to end on this one, because it gives you a real good
idea that there are practical ramifications to the way you do this. To be quite
honest, the people you would hear from are the ones that are going to be
paying more. The people you don't hear from are the ones that pay less. That's
just the nature of the way it works. It really does make a huge difference.
These are actual examples from the city of Rockville, we help to set up their
storm water utility and we used these during their public outreach program. If
you take a look at the top picture you have a multistory office building. The
piece of property is worth a fortune. So if you're going to use the real property
tax, you would use a service district approach and they would wind up paying
over $5000 towards storm water services. If you use a utility fee, even though
it's worth a lot, it's an efficient use of land. So it has relatively small impact
and relatively little amount of impervious cover, so they end up paying only
20% of that amount that they would've paid for utilities. On the bottom, you
have the flip side. You have a shopping center, not unlike something you
might see in the town of Leesburg. It is not worth this much in terms of value
of the property. So in a real property tax model it pays less. Whereas in your
utility fee you don't take into account how much it's worth but it also
consumes a lot of land a lot less efficiently. So they would have to pay about
twice as much because it contributes to the problem. That just gives you a little
bit of an idea of the different perspectives. We've actually gone ahead and
gained this out, who pays more and who pays less and what is the basis for the
fees, whether using real property tax values or you're using impervious surface
area, that's all part of the mix.
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Council Work Session
Bulova: just do the funding all up front?
Wells: 1000.
May 9, 2011
Wright: I very much appreciate the presentation. We will do questions, I'll
just let the guys know we are about 10 min. behind schedule, not surprising.
Dunn: I was just doing some real rough math. If we were to look at this,
correct me if I'm wrong, the 34 million, if we want to try to get those funds
altogether and use them in today's dollars theoretically, we would want to
have those all together in three years. Is that approximately correct?
Dunn: just to the funding right up front. Because those are todays dollars.
Otherwise it's going to cost more if you go further because of the rate of
inflation. Theoretically, then we are looking at anywhere from $45 per
household per month to a $74 per household per month. That's just counting
households, that's not counting businesses. Roughly about how many
businesses in town, John?
Dunn: okay, I put 4000. $58 per just address, basically. In other words,
another way of possibly looking at this is... And I didn't hear you mention it...
But possibly as a percentage of land size to overall town land size and then
whether that's developed land or undeveloped land. We could possibly work
on some type of formula that would possibly get the funding on that. Do you
follow me on that, John? Now like the Forrester property is undeveloped. It's a
large piece of land, but it's undeveloped.
Wells: it gets back to the notion of how much impervious surface on your
particular parcel.
Dunn: then it would be nice to find out from finance what we are looking at
as the future cost assuming certain inflation rates, what the total cost of that
would be taking it out the whole 15 years, or whatever it is. For now, I don't
have any other questions, but thank you for your presentation.
Hammler: I really appreciated all the examples and the way he wrapped it up,
because you anticipated things I was going to ask which is what our specific
example is. But based, on the fact that they were up there leads me to believe
that other jurisdictions have in fact already started saving for ultimately when
they will be required for these payments versus waiting.
Bulova: and I wouldn't say most of, if you asked a locality two years ago
whether they would be facing this kind of cost because of the Chesapeake Bay
TMDL. I'm pretty sure most of them weren't thinking in that direction but you
do have localities like a Rockville, like most of them in Hampton Roads that
when they first got hit with the Clean Water Act requirements and the nutrient
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Council Work Session May 9, 2011
requirements, leapt in and decided they were going to try to have dedicated
funding sources for that. So, to the degree that now they have the
infrastructure, they have to worry about how much they have to increase that
by. I think they are kind of in the same boat. Virginia Beach, just recently
increased theirs pretty significantly in order to go ahead and get ahead of the
curve for that. They have a mechanism in place, most of them haven't banked
it up to the degree where they are in good shape for looking out over a 15 year
time frame.
Hammler: I guess I won't ask a lot of questions because I have too many to
ask, but certainly based on what you presented, it seems to me that the storm
water service district would be a much more fair approach. But I completely
agree that we as a council need to get ahead of determining what the next steps
are from an action perspective which would be determining how to begin the
education process, determine whether ifs this specific quality, designate a
commission of that group of stakeholders to get started on this. How we can
begin to interact with other municipalities to stay ahead of the learning curve,
get access to all the educational resources, continue to ask tough questions,
determine how we lobby other levels of government, if needed? So, I guess
that's to me what the take away is. We need to put out now and not wait. We
need to understand what expertise we need to have on staff and really put in
the time putting a processing and education system in place. So I'll just end
with the bigger question because I'm just curious. This is the Chesapeake Bay,
are there other bodies of water around the United States where there is a
similar situation going on? Where a group of states have to have its
municipalities determine how its services are impacting that particular body of
water because this is just one bay and there are so many bodies of water
presumably impacted by impervious surfaces, for instance.
Bulova: right, and to degree that they have done voluntary versus mandatory
endeavors, I think the Chesapeake Bay has been around long enough that we
are at a curve in terms of what's been required. Similar programs exist or are
being developed for the Great Lakes and other places like Lake Tahoe were
some of the original ones when they started back in the 1980s or so with regard
to requiring best management practices. The Chesapeake Bay is huge. It's
gotten a lot of attention. It's been a poster child for the EPA. Its 64,000 mi.
which makes it very, very complicated. You're not alone in how this is
panning out. It's being replicated in other areas.
Hammier: thank you so much. I appreciated the presentation.
Reid: thank you, David, for all your hard work. I appreciate Mr. Rohlband
being here too. John, so do you think you need a resolution from council to at
least initiate, to get into the town plan process for how the environmental
commission and the watershed committee and the planning commission will
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Council Work Session May 9, 2011
start with that? I know we have a lot of regulatory changes. Maybe we ought
to start with the big picture and have the visioning sessions.
Wells: what I would like to suggest, is rather than... We haven't talked this
through but my initial reaction wouldn't be to suggest Council vote
immediately, but to let us bring back a comprehensive plan. That direction
may be part of several other things as opposed to doing it one step. I think it's
more important to layout the broader game plan. That may be one of five steps
we need to take.
Reid: well but the town plan is sort of the policy and they are redoing that
environmental section right now.
Wright: the other thing, just from the town plan updates, the planning
commission as I understand the processes going to kind of consolidate their
recommendation for town plan changes... I'm staring at planning staff to see if
I remember correctly... They are going to bring that to council to initiate those
town plan amendments, so if the planning commission hasn't already caught
on to it by the time they bring those town plan amendments, that overall batch
they are going to recommend based on their review, which I think they're
getting fairly close to the end of that review, if they don't already have that in
the resolution that's something we can certainly add at the time of initiation.
Wells: the short answer is yes, I agree with the concept. Rather than just
taking the one -vote right now, we're not talking about leaving a lot of time go
by either. I think we need to lay out a lot of the outline that Mr. Bulova has
played out. What I was referencing in terms of funding wasn't necessarily
picking the funding source, but I think there are some important options to lay
the framework as to why this is being done, building community
understanding. Also understanding what we will get credit for and what we
won't so that we know what the real number is. The 34 million is an example,
but it may or may not be the number and I think there are options within that.
So before we vote immediately, I think there is some further guidance that
council may want to provide for a basic framework out to the various groups
before we just simply get everybody started.
Reid: also we need to engage the shopping center owners and people with
large parking lots.
Wells: especially for looking at a utility, they are going to be more impacted
because of the notion of impervious surfaces. Mr. Dunn is bringing out the
difference and how you could possibly pay for that. The purpose for tonight, I
think has been accomplished which is kind of to get our heads around what are
the questions and now we need to start shaping how to get answers.
Dunn: I would also like to know what the penalty is.
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Council Work Session May 9, 2011
Butler: yes, if it's cheaper than the retrofit.
Dunn: yes governments do that on these non funded mandates all the time.
They just opt to not comply and if they are going to fine you $150,000 a year
versus a $40,000 investment over 15 years, which is $800,000, then the cost of
noncompliance...
Bulova: just so you should know, the dollar amount of this to localities was
that the fine was just a warning to take it seriously. According to the law it's
a$36,500 per day per violation.
Butler: unlike my colleague to my left, I think a service district is decidedly
unfair and I would be much more in favor of a utility fee.
Hammler: so your point is, maybe I got it wrong. The process by which if you
have more impervious surface, you have a greater responsibility versus just a
standard fee on a residential house. You would rather do just the standard fee?
Butler: no with the utility fee, the more impervious surface that you have the
more you're going to pay. The shopping center pays more than the than the
tall, expensive building. You didn't say the service district.
Hammler: but that's what I meant.
Butler: okay, then the other thing is under no circumstances should we be
double paying with the County. So we need to get ahead of that now. When
does their permit expire? The same time? Okay, well at that time if the county
decides that they are going to charge Leesburg the real estate tax, then
whatever costs us to comply we should have the county pay for that. So then
they would be paying the entire bill and we would all be paying the entire bill.
If they're going to go through a specific utility fee of which Leesburg would not
be required to pay, then we pay on our own. So this is much too big of a thing,
we need to figure that out up front. I'm not paying for people outside of
Leesburg.
Hammler: so Kevin, I apologize, for the record, I did actually mean utility fee.
Butler: okay, then let me rephrase, councilmember Katie Hammler over here,
who I agree with... The utility fee is definitely the fairest way to go.
Wright: again, thank you for the presentation. I know you've seen us as we
have gone through these we have been looking at this oncoming train for some
time and it's been helpful to kind of peel the layers of the onion back and get
our arms around it. A couple of other highlights, obviously, John this is still
you kind of bludgeoning us so we are getting used to the idea. Any idea of
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Council Work Session May 9, 2011
what the next steps are, or is this still kind of maturing. Are we going to see
something else in a quarter?
Wells: the staff would like to bring back a couple options on how to bring
back a game plan to begin engaging community groups, building that public
level of support, engaging some of the other boards and commissions to take
that message out and begin to look at ways to implement this through our
various documents whether its plans or otherwise. One thing, before we would
let it out of the council chambers, there probably needs to be some discussion
to see what level of consensus we might have on basic approaches for issues.
So that what direction we are sending out may be are narrowed a little bit as
opposed to bring anything back, if there are some things we absolutely don't
want to have to deal with. It would just make the job easier. That's not to limit
debate, but there some things we don't want to do and if everyone agrees with
them let's just provide that direction.
Wright: a couple of other questions. When you talked about nutrient
management, obviously farms and stuff like that and large parcels, is one thing
but it does kind of bring up a question... different homeowners may use
different private companies to fertilize their lawns numerous times or they may
do it themselves. Is that a huge issue? The one thing that crossed my mind is
there some education that we need to do around that. But is there also a
different level of permitting to some of the commercial lawn care folks that
come out and apply fertilizer, if that's their gig. If that's placing an additional
burden on our system, would we have the ability to have additional permitting
or something like that based on what they do or do not spread?
Bulova: the localities do not. By state law a locality can not go in there and
separately regulate the sale of fertilizer and such. However, because it is a big
issue, during the general assembly session this year the assembly had pretty
solid arguments in support of adopting new rules and regulations for the
application of phosphorus and fertilizers. I believe by December 1, 2013 you
will no longer be able to buy fertilizer for routine maintenance, at least
fertilizer that contains phosphorus. The only way you can buy it is if you were
establishing a new lawn. There some new rules for commercial applicators
who will no longer be able to apply fertilizers during a certain time of the year,
especially during those times when the ground is likely to be hard or would
likely have frost which may be coming off as runoff. The Gen. assembly did
adopt some pretty far reaching new standards with regard to both commercial
and private application of fertilizer. So while you all do not have the
opportunity to add to that, we did take a pretty substantial leap forward with
regard to this because everybody agreed it needed to be done.
Wright: John, this one goes back to you. Looking at the potential cost
strategies, one of the things that kind of hit me is track some of the things that
we are already doing... You talk about tree planting and stuff like that, we
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Council Work Session May 9, 2011
have a standing policy where we plant trees every year and if there's a way that
we need to do that differently... Sort of take some of the money were spending
and make sure were squeezing everything out of that dollar that we can.
Wells: this is why I'm reluctant to get too wrapped around the number. I think
we want to do everything possible to take credit for what we are already doing.
If it takes a minor tweak or modification to get credit for something we're
already doing, that will bring that number down. We don't want to run to a
number without first running to what are those things that truly help deal with
the pollution issues. If we've already got the ball rolling in some areas that
help, can we enhance that in some way. If we like trees and want to increase
the canopy and get credit for more trees, then let's spend more money there.
That's where I think some of the policy choices come back to. Trying to align
the effort if we are going to be spending money, at least doing it for things we
feel we get a value back on as opposed to the trading idea, which in some areas
is just spending money to buy the allowance as opposed to getting a value for
it. So those are some big policy issues.
Wright: a couple of others, 1) as we are looking at CIP projects, if there are
adjustments that we can do within the scope or scale of those for a minor
change in cost but can accomplish putting the tree boxes and or anything, just
make sure anything that we are doing meets the eye of how can this help us
with the other option. We talked about the private education options. The
other thing is, the things that we can do, at least start the concept ASAP. Don't
start spending $34 million, but get the concept there. Obviously, we have to
work with the county on a couple of different fronts. One of them is, we go the
utility approach, they are a huge landowner. They got a lot of pervious surface.
There's a vested interest in us working cooperatively together on that.
b. Boards and Commissions Follow -up Session
Dentler: back in January we had our joint meeting with the boards and
commissions. Out of that came a variety of different ideas and suggestions,
many of which have already been identified as various groups who are already
doing that work. There only two items before you to decide if you wish to
move forward with those. One was to develop a matching grant program as
suggested by the EAC and COPA. The second was to possibly develop a
preservation plan. So, if you're interested in that, staff will go back and develop
details for you for consideration at another meeting. If you're not interested, it
will just die here. The other things that are ongoing will continue. Whatever
direction you have.
Wright: two clarifications. On the developing the matching grant program, as
I remembered that request, it was to kind of identify or set aside a pool of
funds that would be available so that if some division of town government
were to go after a matching grant, there would be an assurance that if we got
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Council Work Session May 9, 2011
the grant the match would be there. Then the preservation plan, that is kind of
an update of the document on our historic preservation policies.
Dentler: the idea was for them to do that in- house. In fairness, with the
changes in personnel with the approved budget, we would have to confirm
what level of work planning could do. But if that's something you have an
interest in, we can go back and see what we can do and what's the best way to
approach that.
Wright: let's try to take this in three parts. One, we will ask the two direction
needed questions and then if anyone else has any other issues, we will get
those. So on the developing a matching grant program, Marty, is that
something you would want to do? I'll come back to you. Katie, is that
something you'd want to do?
Hammier: I honestly feel I don't have enough information on either of the two
questions to be able to give a quick yes or no. I say that because in the context
of scale or scope or what we're trying to accomplish, I don't know. The same
thing with the preservation plan. I don't know what the specific goal would be.
Wright: that's actually a good point perhaps a better way to ask this is that
something you want staff to continue to research and provide a follow -up
report on?
Martinez: Yes.
Hammier: well, I'm happy to have the information. I guess I'll bounce it back
to prioritization, John, and any input as to what doesn't happen if this gets
bumped up.
Wells: what I would suggest is, if we need to know the proper prioritization,
there would need to be some additional information. We could provide that
back to council as Kaj suggested. In terms of scoping these out a little bit more,
and determining where these fit in, a good example would be the preservation
plan. Where we have had some reductions in that particular area or the
matching issue, we've got some funding issues. There's going to be some trade-
offs, so maybe the better approach would be to say yes to bringing back
additional information and maybe we could put that into a better context.
Wright: unless you are adamantly opposed to spending time. So, on the
matching grant I think I have two yeses to at least bring back additional
information.
Butler: yes.
Reid: no.
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Council Work Session May 9, 2011
Dunn: just a little more clarification. I think that this is an overriding
comment that most folks here will agree to. The one thing I don't want to have
happen which is happened in the past, is that we send off, in this case our
boards and commissions to go work on something, that I think you just
mentioned, if are going to say no anyway then let's say no now. So having
these poor people come to this dais after working for months on stuff, and then
get no we don't want to do a facade improvement program. Okay, you told us
to go out and work on that. I don't want that to happen. So what is this grant
program for?
Dentler: This is, I think vice Mayor Wright described very well, was basically
developing some level of pool money that would be available for commissions
to use for matching funds.
Dunn: so its town funds to request grants.
Wright: it's just for these two commissions.
Dentler: those are just the two commissions that identified. So they would be
the driving forces with staff to look at a program, if you wish to do it. Again, at
that meeting in January it was very general. There wasn't a lot of detail, so we
brought this to you a few months ago, the request was to come back and you
would talk about it at another time.
Dunn: so we currently have a grant process in place that is $20,000, $10,000?
Wright: let me clarify what the request was. What the request was is the
boards and commissions in identifying possible funding sources, a lot of what
they're finding as a possible funding source is a matching grant. Their fear is
that they don't want to go forward and apply for a matching grant to then
come to the town Council and say yay I got the grant and we say we won't
match it because not only will they not get the grant, but they get blacklisted
from future applications because they didn't perform on the grant they will
awarded. That's what they were trying to identify a different process for.
Dunn: so we set up a dollar amount. This is a $40,000 pool of funds that can
be granted to a commission. The commission goes out, after we've made that
decision during the budget process, and finds that they can get a matching
grant for X project as long as the town wants to contribute $20,000 while we
have it. We still have $20,000 left, but that's one commission. By the way I
just did a little analysis here right quick, of all the things commissions came to
us for that were roughly 59 things that they were asking for or action items, 29
of them required funds. So 49% were funding issues also. They want money to
do certain things or it's going to result in some kind of cost. So my question
would be if we were to say today, well sure let's go ahead and allow this grant
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process, how do we manage that going forward to where it's equitable for all
commissions. Should the commissions then go and say well there's 10
commissions, theoretically, there's $40,000, we can only go to matching grants
equitably up to $4000. How do we manage that process that makes it equitable
for all commissions?
Dentler: to answer the question, those were all details we would have to work
out before you would ever approve the program. What we're trying to find out
tonight, it is if you have an idea or interest in this type of a program, staff will
spend some time with the commissions to develop something for your
consideration which will also include the criteria of how to do it. You will
decide how to do it at the end, before we ever go forward.
Dunn: I would say, that I'm in favor of the grant system that we have in place
because the alternative was, oops when did y'all spend that money? Which got
us to where we are today. We had some commissions that were spending
funds and we were kind of taken aback by it. I would be more in favor of the
grant process however, knowing that when the commissions came to us last
with their list of grant requests, and they were well within the dollar amounts,
they came to us with a whopping six or seven thousand dollars and we had a
pool of $10,000, or whatever it was, and we took one commission that had a
great presentation and said hey take that money. Take it and use it wisely.
Another commission comes to us with what is not so great a presentation for
funds being requested and we take them to the ringer. Based on our own value
system of what we feel is more important, I'm for the grant system as a gives
the checks and balances, but I'm not as thrilled about how we are going to
administer those grants. Because I don't know that it's been equitable. I guess
to say, yes, I'm for staff coming back, but the commissions need to be prepared
for the situation that you could get denied. If that's going to give you a black
eye, then don't pursue that. Don't meet that bully in the hallway.
Wright: that, or staff would need to come back with is if you're going for a
matching grant, you have to at least get tentative approval ahead of time, yet
we like what you're going for the grant for, if you get it, will match it before
they apply. Then we have a bucket of money that's ready for them. So they say
hey I'm going to apply for this grant, hold this money for me. If they get it,
they get the money, if they don't get it it gets released back to the pool.
Something like that within the system.
Dunn: I'm willing to at least hear back from staff what they want to do at this
point. What they may come back with is the system I can agree with. I'm
willing to see.
Wright: on the preservation plan, Marty is that something that you want staff
to come back with a work plan for that? And /or funding?
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Martinez: yes I do.
Hammler: I have the same reaction I did to the other one, which is how does
it impact staff and how does it impact what you're spending your time on. I
don't really know what the object of the plan is. What the benefit of the plan is.
Reid: the preservation plan was proposed by Dieter Meyer when we were
discussing design guidelines about two years ago. Essentially what it would do
is go a little bit beyond the H -1 in the sense that it would identify the most
historic and most treasured buildings for preservation. There are some that,
may not, we don't know for sure be kept up well. He says a lot of other
communities have that. The BAR does not have a big workload and I think
they have some time to work on that.
Hammler: okay then my answer is yes.
Martinez: one of the things they are doing, is they are looking at other
localities preservation plans that are in place. They are not going to reinvent
the wheel.
Butler: Yes.
Reid: Absolutely.
Wright: I'll be the only real cautionary one. I know the BAR will probably be
driving a portion of this but I know planning has a long list of work programs
so just as you guys are coming back and giving us a report on the cause and
effect, just make sure we understand that if there's any other cause and effect
that are impacting planning staff.
Dentler: once we figure out where this fits in their work plan, we'll give you
that information.
Wright: just to give anybody an opportunity, did anyone have any questions
on the balance of the items that are already in progress?
Reid: yes, the arts and cultural district, it says town Council review underway.
We have adopted it. Are you talking about some kind of program?
Wells: there are other implementation steps, but this isn't as current as the
council's last action.
Reid: what I would like to do is have staff get out there and really promote it.
I was talking to Lee McKinster about this the other day, and she also wants to
see some incentives for the artists themselves. That means we can look at
parking spaces in the garage. I think it's very important, considering that we
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have lots of empty office space to try to use this as a tool to attract folks to
Leesburg. The other thing was the centralized tree management under review
by the town manager. Is that also the same as the community canopy project,
John?
Wells: the community canopy project was one element of a broader overall
plan to deal with canopy. The CIP project is very identifiable in terms of
funding sources. Centralized tree management, to recap we have redirected
staff members to deal with that in light of our budget reductions.
Hammler: just to clarify, number that was highlighted in the report on either
work session items that we're going to be deliberating on, I know that we had
already determined that we would have staff look at this whole issue of how
the technology commission is videotaping future meetings if that becomes an
issue with Comcast.
Wells: there is actually a meeting scheduled with Deiter's input. We talked
about setting up a joint meeting and he invited me. We're following up on
that.
c. H -2 Corridor (Dunn)
Dunn: Susan is more than welcome to take over the bulk of it because this is
something we worked on, I think it first came up in October of 2008. There
was a resolution at that time, it's not in here, that was either to remove the H2
as a corridor and /or have the review of it be by the planning commission. I
would be willing to accept either one of those. I think that the BAR, their focus
should be in our historic area. I think the H2 has shown itself to be problematic
when it's being brought up. I know Brian's not here, but his example was to
protect us from Popeye's lava rocks. I think we have surpassed that threat at
this point. To look now at our H2 as being anything incorporating a historic
element that have flowed from our historic downtown all the way to our gates
it just has not met those goals. When I look at things like TD bank which used
to be called Commerce, and I look at the Capital One bank that used to be
Chase. These are things that we accepted the design elements because those
banks, the previous banks, wanted branding for their bank. Well guess what,
those banks don't exist anymore. The new bank probably could care less what
the branding is they just want the building. I think that we can go up and down
our H2 corridor and see that this is not what we wanted it to be. It might have
been a novel concept, but at this point I think it's more important that BAR
focus entirely on the downtown and the issues that we have in the downtown
and get them back into the business of Board of Architectural Review for the
historic district. We had an opportunity, much to my chagrin, that the form
based code did not take up the mantle of reviewing what would be our H2, I'm
very disappointed in that. But at this point I think if we are to go forward with
that, then fine. Let's start working on it. That would be putting these form-
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based code elements into the H2. But in the meantime, let the planning
commission take over the review of any H2 issues, get it out of the hands of
the BAR, let the BAR focus on more important issues of the downtown.
Looking at staff comments about, on the last page here, implications of the
proposed changes having to change the planning commission, Susan how
much official training do BAR members get currently?
Berry Hill: I think the issue is they are used to dealing with the guidelines as
they have been written and used to applying them. It's just a matter of making
the planning commission familiar with those guidelines. Because they have not
used them before. We just need to train them on what's in the guidelines and
traditionally what the application of the guidelines has been.
Dunn: right, when we have our elections and new BAR members are
appointed other than the one required architect really nobody on that
commission has any formal training. Unlike our planning commissioners,
which I'd hoped actually when we had the training here in town, for the
planning commissioners, I had hoped that our BAR commissioners would've
attended that because I thought it would have been beneficial to them.
Unfortunately, I don't think that too many of them attended the training.
There is, unfortunately no formal training for BAR commissioners and
especially new commissioners, they are not familiar with any of the guidelines.
It's a learning as you go. I would think that planning commissioners with their
vast experience dealing with town issues already, would find that learning
curve much shorter than someone just coming in off the street and joining the
BAR. I think that either the H2 should be removed, it should be replaced right
away with form -based code guidelines. If that is not possible, then in the
interim, I still think that's the best alternative, have the planning commission
go ahead and take over review of the H2 right away.
Irby: I have a quick comment. With respect to the planning commission being
a review entity of the H2 district, because the way the H2 district was enabled,
I don't know that that's a possibility. The code provides that it's a board of
review, not a planning commission. I did do some research this afternoon, so if
you're not interested in maintaining the H2, then that's fine but you would
have to enact something else, doing form -based code or whatever, but the H2
the way it's enabled is a review board, not a planning commission.
Dunn: right, but that's change of the town plan, but the state code does not
require it. It just says a body.
Irby: no, it says a review board. It does not say the planning commission.
There are specific references in the planning commission so I would have to do
further research on it. If they wanted to allow the planning commission to do
it, I think they would've mentioned it because they do provide that the
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governing body can take that review. It says nothing about the planning
commission.
Dunn: but you're not sure on that?
Irby: I just looked at it this afternoon, and from what I can read from reading
the statute does not provide for the planning commission.
Dunn: but it doesn't say the planning commission can't do it?
Irby: this is the Dillon rule state, so if there's not...
Dunn: so where would you go to get that confirmation, the Supreme Court?
Irby: I would ask my colleagues... I would ask the attorney general but again,
I would go through my colleagues first and see if anyone else has run up
against this problem. I'm saying the way the H2 district was enabled, we
enabled it to a specific code section and that code section that we enabled it in
says a review board. It does not say the planning commission. It says if we
don't do a review board then the governing body can retain the authority to
review. That probably has more to do with the appeal process than it does with
how it was set up. Because they can appeal to council and then to circuit court.
Depending on what council is leaning towards doing, I guess depends on...
Because you can set it up differently, but the way it's set up right now it came
through particular statute which does not provide for the planning commission
to review.
Dunn: if that were the case, then that to me would be more reason for having
form -based code be the governing mechanism and again, keep it at planning
commission.
Wright: Susan, if in the course of your update if you can also comment... I
know we've talked about what we have lovingly called form -based code lite or
taking aspects of form -based code that we like and having them apply within
the H2 area to see if that might address that, if you could give any sense if
that's something that you need a Council action for or if that's in the workplan
and how many years after 2015 that is?
Berry Hill: as you know, we were directed to go back to the planning
commission and look at expanding the area that the form -based code could be
applied to. It was my intent to also ask them the question about if form -based
code is expanded to the entire area, do you want to consider the form -based
code lite approach which is taking elements out of the form -based code and
amending the existing zoning districts in that corridor area. So, that would be
part of our work plan this year, I think, once we get started on doing that.
That's part of the bigger workplan that involves the implementation steps on
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the form -based codes and involves other departments such as public works,
department of plan review, our department, executive office so that is
something yet to be determined in terms of our overall workplan.
Wright: and then anything else, any additional comments beside the
discussion that is already happened on this item?
Berry Hill: depending on what our guidance is from Jeanette, we can do this.
If that is the direction of the Council, it's just a matter of changing the zoning
ordinance. Right now the zoning ordinance gives review authority in the H2
corridor to the BAR so we would need to change that to the planning
commission and change other relevant sections of the zoning ordinance. Of
course that necessitates going through the public hearing process at the
planning commission and Council. We can do that and then the next step
would be to train the planning commission and change our administrative
processes to coincide with that.
Irby: but if you are going through the planning commission, you would enable
it differently. It wouldn't be to the guidelines for a historic corridor. It's a
different zoning district. The reason why we have H2 under that statute is so
that you can have review in conjunction with historic elements. Taking it back
from the purview of the BAR, then it's not a historic element review, it's
different.
Berry Hill: the H2 is kind of a hybrid. It recognizes that there may be historic
elements within the H2 corridor itself, but it's also design guidelines that are
compatible with the H1 district.
Wright: we may be able to save ourselves some of this debate, depending on
the Council reactions. Let me ask one more question and then we will go
around and see where we are at. Did you get any sort of reaction, be it
informal or formal from either the planning commission or the BAR on this
concept since it was undefined, wait and -see what we can do?
Berry Hill: we didn't talk about it at the planning commission meeting. I did
talk to the planning commission chairman about it and her reaction was if it's
the direction of council to do this, than the planning commission will. Again,
we need to be assured that we are meeting the code requirements for this. I
think that's the first step.
Butler: I see no advantage to having the planning commission do something
that's really a BAR purview. The whole idea is the aesthetics of the building.
That's in the BAR wheelhouse. The planning commission already has much
too much to do. I don't see any advantage to that at all, except I think it's a
personal issue with the BAR, so I think it's a personal issue and I'm not
interested. I've talked to a couple people on the planning commission and their
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eyeballs get wide with shock if they think of having to do that as well. I don't
think anybody's interested in doing that because it's putting a square peg in a
round hole or the other way around, depending on how you look at it. If we
have issues with the design guidelines, then we must change the design
guidelines. If you want to make the design guidelines more like form -based
code, we can do that but I think it's as simple as taking the design guidelines
and going and changing them and I don't see that anything needs to be
changed in the process.
Reid: what is the status of the design guidelines for the H2, I thought they
were being redone?
Berry Hill: no, while the H1 guidelines were redone and approved back in
2009, but the H2 guidelines have not been.
Reid: I thought we initiated that.
Wells: I don't think the Council directed that.
Reid: I think that's something that's really necessary because the new
guidelines, unless we adopt the form -based lite are needed.... One of the
problems with the H2, is that there is a facet of regulations that says we shall
not be stipulating a specific type of architecture. I think that's why we don't
have that Colonial, Victorian look to a lot of the buildings in Leesburg. In
many respects, and given the fact that there was incredible demand and growth
in this town in the 1990s, if we had done that, we would've been able to do
what a lot of folks that I have talked to would like which is to have a more
seamless H2 that is more like Colonial Williamsburg. Basically all the
McDonald's and fast food restaurants and all the shopping centers have a
Colonial or Victorian look that fits into Leesburg. Some buildings have that
but not all. You know very well, Kevin, that there's a couple in particular that
you and I have a real problem with that are right on E. Market St. I won't
name any names. So unless the guidelines talk about using materials in certain
colors, the BAR looks at on a case -by -case basis and they approve things that
really have no value to Leesburg. Now we are in a recession and what do we
don't want to do, we want to make Lowe's and everybody else go through the
hoops. I really think that doing something like the village of Leesburg did,
using some of their guidelines might be appropriate. Dave, I see nothing wrong
with the planning commission looking at the design of the buildings if there's a
special exception or rezoning because that's one -stop shopping... They don't
have to go to a separate board for that. But if it's form -based lite that we want
to implement, that might be a good thing. Let me ask you about some of your
statistics. It seems to be apples to oranges here. You have raw numbers from
2010 and then from 2009 you have percentages.
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Berry Hill: those were percentages of the total applications for that year, in
2009.
Reid: so you don't have raw numbers from 2009? Have you been doing some
administrative review of signs since the new ordinance?
Berry Hill: yes, all signs in the H2 are reviewed by staff, unless they don't
meet...
Reid: how many of you had so far in 2011?
Berry Hill: oh I don't know in 2011.
Reid: the new school that's going to go in, will that have to go before the BAR
because I think it's right on the line there, the new elementary school?
Berry Hill: no, I think they are out.
Dunn: there's a small portion that's in it.
Reid: but not the building. So therefore, even though the property is in the
H2...
Berry Hill: I think the northern tip of it is in the H2, but not where the
building is. I believe that's right.
Reid: see, that's been my other issue. The fact that there are buildings that are
not visible from the street that goes through the BAR, and then there are some
buildings that are visible from the street, they go through the BAR and they
come out looking very Leesburg -ish. I think that we can do some kind of
hybrid of this. We've done a very good job of making the process more
predictable with 75 day deadlines. Obviously, you're doing a lot of
administrative review so that's probably a great help to applicants. But, I think
we either update the guidelines or we go with form -based lite but there's
nothing wrong with also looking at, in the future, having the planning
commission look at some of these, if it's subject to a special exception or
rezoning. I wouldn't want the planning commission to start looking at
everybody's. I think that the BAR can handle that. For the sake of one -stop
shopping, I wonder if that's feasible. If it's not, legally, then we can't do it. In
terms of the district, again, I have serious issues with the fact that these lines
were drawn very arbitrarily 500 feet from the centerline of Route 7.
Berry Hill: it varies. It's 1000 feet outside the bypass.
Reid: you know we've had situations where things... It really has to be
properly vetted from the street. I think that if it fronts the street, then it should
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go before the BAR or the planning commission if it's a special exception are
rezoning. Of course that may not be legal. Maybe where we are really heading
here is our guidelines.
Hammler: I think it's very simple. No additional discussion needed we don't
know if it's legal. We need to find out and find out what the schedule would be
for coming back with the form -based code lite.
Butler: which is effectively changing the guidelines. It's the same difference.
Reid: that's a good thing, I think. I think that's a good thing.
Butler: when you talk about form -based code lite, what that really is... As
councilmember Dunn has said is taking the design elements, which is basically
the design guidelines, so if you want to make design guidelines is famous form
based code lite, that's fine but they are not two separate things.
Martinez: I agree with Katie on one end that we really can't even... Why are
we even having this discussion until we find out whether or not we can do it.
Second, before I'll make any decision I need comments from both the planning
commission and the BAR on wanting to give it up and wanting to take it.
Before we go there and before we go to the legality this is definitely in need of
more discussion.
Wright: a couple of comments. The one thing, on the form -based lite, I think
it was councilmember Dunn, and he'll obviously correct me if I'm wrong, I
think it was his intent that the concept of form -based code or the design
concepts would go into the base zoning and then that would allow sort of the
same by right. It wouldn't be a secondary review. Your goal, when you talk
about form -based code lite in the H2 area is get rid of the corridor and have the
zoning district have these design guidelines within the zoning so it all happens
at once as an administrative decision.
Dunn: it did not have to necessarily be by right. The beauty of the form -based
code is we get to make our rules. We can decide what portion of it would be by
right. For example, if they chose between six building designs, we know by
right they can choose any one of the six as long as they aren't consecutive, you
know every development can't pick the same six buildings. Once you do that,
that's by right. However when it comes to market Street, streetscape issues, we
would want to have that not by right because we would like to have you talk
about that. We can make the rules how we want. The state gave us that right
to do that. Right now, we have no say right now as to what a building is going
to look like other than it will have wood, brick, metal, and glass. Other than
that, maybe lava rocks, that doesn't cut it. No lava rocks. Other than that we
don't get to decide what it looks like. The form -based code gave us that ability.
So my view is the corridor has no historic elements to it. Let's face it, for 20
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almost 30 years now, we did not succeed in taking that historic flow from
downtown out to our gateways. It's just not there. It's in some elements here
and there but for the most part E. Market St. doesn't have it. So we have an
opportunity to make that happen. In redevelopment and current development
it can happen.
Wright: I'm just trying to make sure that I understood what some of your
options were. So from the standpoint of the H2, unless we're voting to get rid
of the H2, I have no interest in changing who's reviewing applications. Ken's
thought on the if it's not by right, so if it's a rezoning or special application
that's coming through is intriguing as to whether or not that review can be
blended.
Reid: it would have to be legal first and she's got us tell us.
Irby: but if you are redoing it, we have connected the H2 to a particular
statute.
Wright: as long as we are saying the H2, as a council, is still there and is
important, then I would say the review status with the BAR, if we're willing to
just bag it and pursue either a different zoning approach or just let whatever be
will be, then let's just say that. But just changing the review from the BAR to
the planning commission, I don't think solves the problem. As Ken alluded to,
either update the guidelines or as Tom has alluded to, scream from the
mountains, everything else, change the zoning to some combination of form
based code or something else that gets us the intended results because the
overlay district doesn't seem to be working. Susan, can you remind me from
the task force or committee that we had on the H2, if I remember their
feedback correctly, it was leave the H2 there for now, update the guidelines
and then ultimately migrate to a different zoning tool. Is that right, or am I
remembering that wrong?
Berry Hill: yes. They had recommended that the H2 concept itself wasn't bad.
There are other jurisdictions in the state that use it to regulate development
going into their historic districts and they do it pretty effectively. One of the
reasons that ours is not effective, is that it really doesn't address site planning
issues. That's one of the reasons we have problems. Another, what's been
talked about, is more architectural guidance that's appropriate for the corridor.
Right now our guidelines really talk about things that relate to the H1, rather
than this blended new area that the H2 is to be. So they recognize that the
concept itself is good, it's just how the guidelines are written is not helpful.
Reid: and also it's kind of late to go back on East Market. Let's give East
Market a fair shake. Compared to some other strip environments in this state,
it's not bad. It really isn't. You know village of Leesburg is very nice and the
Potomac Station shopping center, but if you're watching the development
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activity report, you're going to see that there's already activity starting on S.
King St. If we don't do something pretty quickly, whether it's a form -based lite
as a design guideline or changing the design guidelines, we're going to be in
the same situation with S. King St. as we were with certain outliers on East
Market. I'm not throwing the whole corridor down the drain.
Dunn: my concern is that we pick out the fact that it's been an ongoing issue
for years. Bring it more up to date to where this could've been part of the form
based code. We worked on that for 2 1/2 years and now we are talking about
estimating, were talking about a good year.
Berry Hill: the implementation steps are to be in place by March 1 of next
year.
Dunn: if we were to add, for lack of a better term, form -based lite, and we call
this the FB -1 district. How long would that take you to take elements of what
you already have in form -based heavy and crescent district and implement
aspects of it in what is now the H2.
Berry Hill: well, it would be staffs intent to work with the planning
commission on that question, whether or not the form -based codes should be
expanded as it is to the E. Market St. area or probably if they don't see that as a
viable option, if they don't agree with that, I guess they would make
recommendations to you all for how to incorporate portions of the form -based
code into the district.
Dunn: so if they chose option two, because to bring up option one we have
already crossed that bridge. They have already said they didn't want to do that.
So I don't know why we would want to bring that up again. So to do option
two, how long would it take you to do that? A year?
Berry Hill: I'm hesitant to say. Because right now.... Probably.
Dunn: just to point out here, right here in the document before us, this came
from the committee, revisions it says number three "site building design
address landscaping, general clarity and strength in the guidelines That was
a goal of this committee back in June of 2009, almost 2 years ago. We
originally brought this before this Board eight months prior to that and we
gave them over six months to work on this project. Guess what, those four
elements are form -based code. Yet, we just can't seem... I took a picture of it
while I was driving looking backwards with this little cell phone. But I was
leaving the parking lot so I still wasn't on public ground. It's a picture of the
McDonald's off of Route 11 which is a four -lane, almost like an interstate in
Winchester out in an industrial type area and it looks like a log cabin. I have
been to Fairfax Circle, if you know Fairfax Circle you know his dealerships
and businesses, and I shown you all in your e -mail a picture of a Chuck E
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Cheese that looks like a federal type building. They can get it done but we are
still dealing with the fear of lava rocks. We are not getting to where we want to
go and yet we are saying we just can't make that move.
Wright: let me ask a question. What it comes down to it I guess is what
resolution do you want to bring up. Or do you want to get the answer from
Jeanette? Is your main goal to try to get it to planning commission review? If
so, the next step is to get Jeanette to give us a clear answer. If your main goal
is to get rid of the H2 and replace it with nothing or get rid of the H2 and
replace it with some version of form -based code, what resolution do you want
to work toward based on what you've heard tonight?
Dunn: here's the train of thought, Kevin. I think if we keep hanging around
with the H2 concept, we will keep going back to what Jeanette has so aptly
pointed out, that's going to be a BAR issue. Well, we're not sure, but we think
it does. So as long as we want to keep having the H2, we're going to keep
saying it's a BAR issue and we get involved with what Dave said, a personal
issue. No it's not personal. I think what it means is we have to say okay let's
get rid of the H2. I don't think if we got rid of the H2 today and turned it over
to the BAR, went through the public hearing process and then have the
planning commission start to do review of the H2 as they would any other
area, I don't think we missed much. I can look at it now and say I'm not
missing much. I don't think I'm going to sacrifice a whole lot of historic
integrity in the H2 for the next year that it takes us to develop the form -based
code which is the more natural aspects that were looking for that's going to
have the town look the way we want it to look.
Wright: so what I hear you saying is that you would want to see a resolution
that would go ahead and get rid of the H2 and at the same time initiate a form
based code lite that would cover some portion of the area? So staff could you
put that on the appropriate calendar?
Butler: but what if there are four of us that want...
Wright: he has the ability to ask for it as a future resolution. So we can have a
debate as to whether or not we like the resolution were we can have him bring
forth his resolution and we can go from there.
Reid: I have a question for you. Are you saying that you would be
superimposing form -based code or form -based lite on the same corridor
overlay or can we revise the overlay so we are just dealing with properties that
are visible from the street?
Wright: I think that can be defined at the time the resolution comes forward.
Reid: that's what I would like to see and that would be very good.
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Wright: that sounds like there's a second to the motion whenever comes forth
at a meeting. So we'll wrap that for now.
d. Rules of Order.
Wright: We have rules of order as our next agenda item. There's a draft in
your packets of some concepts. I'll take a stab at introducing and then I'll let
Marty follow -up, if you want.
Martinez: my concern is a lot of this impact, I would like the mayor here to
discuss it. Unless everybody wants to, I hate moving into another working
session but...
Wright: you would like to defer?
Martinez: I would like to defer it until the mayor and everybody else is here. I
think the changes are enough that she would need to be part of the discussion.
Wright: especially since she would have to referee them.
Martinez: that's the point.
Wright: does anyone have an objection to deferring? Seeing none...
Reid: basically what we're doing here is putting in time limits.
Wright: there's a variety of issues, but that was one of them.
Butler: do you want to defer it or do you want to discuss it tonight?
Dunn: I would just as soon discuss it tonight and get it done.
Butler: Defer.
Hammler: Defer.
Reid: Defer.
Wright: I'll defer.
3. Additions to Future Council Meetings
Hammier:
a. Flag policy at Freedom Park.
b. Fee Waivers to support the Free Clinic fundraiser at Ida Lee Park. There
was consensus to put this on the agenda for Tuesday night under Consent.
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Council Work Session May 9, 2011
Martinez:
a. Little League fee waivers for the State Tournament.
Butler:
a. Clarification about potential increase in speed limit on Battlefield Parkway
Mr. Wells clarified that it was looking at standardizing the section from Fort
Evans Road to Evergreen Mills Road. Council Member Butler asked that Fort Evans
Road to the town limits be added to the study.
b. Potomac Crossing Park update. Council Member Butler stated he was
never in favor of this park because it would remove acres of old- growth forest. He
stated any alternatives could be considered.
Reid:
a. Initiation of an amendment to the Zoning Ordinance to allow certain small,
unfixed structures an exemption from the BAR approval process and the zoning
permit process. He stated this was requested by the Mayor.
b. Data Centers. He stated data centers need a lot of water and are a good tax
revenue source. He questioned whether there are ways to enhance the town as a
place to locate data centers.
Dunn:
a. Civil penalties for vandalism at Balls Bluff.
Wright:
a. Report on possible sale of town owned real estate.
4. Adjournment
On the motion of Council Member Martinez, seconded by Council Member
Hammler, t meeting was adjourned at 10:10 p.m.
Clerk of
2011 tcwsmin0509
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