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Home My Public Portal About2015_tcwsmin0921 Council Work Session September 21, 2015 Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Kristen C. Umstattd presiding. Council Members Present: Kelly Burk, Dave Butler, Thomas Dunn, II, Suzanne Fox, Katie Sheldon Hammler, Marty Martinez and Mayor Umstattd. Council Members Absent: None. Council Member Dunn left the meeting at and returned at 9:12 p.m. Staff Present: Town Manager Kaj Dentler, Deputy Town Manager Keith Markel, Town Attorney Barbara Notar, Assistant Town Manager Tom Mason, Director of Planning and Zoning Susan Berry Hill, Director of Public Works and Capital Projects Renee Lafollette, Director of Utilities Amy Wyks, Senior Planner Michael Watkins, Police Captain Carl Maupin, Deputy Director of Public Works Charles Mumaw, and Clerk of Council Lee Ann Green AGENDA ITEMS 1. Items for Discussion a. Exeter Stormwater Management Pond Tom Mason gave a brief presentation of the issues surrounding the Exeter Stormwater Management Pond and dam. Key Points: • The Council was presented with a petition from the Exeter Homeowner's Association to take ownership and maintenance responsibility for the existing stormwater management pond at the August 11, 2015 meeting. • The earthwork dam runs parallel to the Rt. 15 bypass. • Principal spillway controls the flow of water going out of the pond area. • Emergency spillway is designed to take excess water along a path so that the dam is not washed away. • Water comes from three principal inflow channels— one to the north and two from the south. • Facility was built in 1990 and met all regulations in effect at the time. • General Assembly adopted a new dam safety act in 2001, which put a lot more restrictions on the requirements for dams across the state. • Exeter Homeowner's Association was notified by a letter from the Virginia Department of Conservation and Recreation identifying them as the owner of a dam known as Richmond Square which is considered a high hazard dam. • Dam Safety Act requires that all dams be regulated except those that meet certain conditions. • Regulated dams are put into three categories —low, significant and high. 1 Page Council Work Session September 21, 2015 • Exeter dam is considered high hazard because of development downstream and location directly adjacent to a primary roadway which is part of the National Highway System. • HOA, as owner, will need to take necessary steps to get the dam into compliance which includes an obtaining an Operation and Maintenance Certificate, Rainfall study, Emergency Action Plan, inspection and certification by a professional engineer, and clearing on the existing facility for the trees on the slopes of the dam. • Preliminary investigation done by an engineering company retained by the HOA confirmed that this is a high hazard dam and initial computer model tests indicate it will not pass the requirements for the 90% of the flow generated from a probable maximum storm, which in Virginia is somewhere around 35 inches. • Hydrology and rainfall statistics come from the National Weather Service. • Rough cost estimates for the improvements necessary to bring the dam into compliance, as well as an alteration permit from the state, is $935,000. • Taking over the maintenance, as requested, would add an additional $21,000 per year, minimum, to the Public Works budget. • Certificates issued by the state must be renewed every six years, which may incur additional costs. • Drainage shed for this stormwater management facility is a little over 500 acres, about two thirds of which is not part of the Exeter community. Council Comments/Questions: • Dunn: The TMDL guidelines are not impacted by the repairing of the dam, is that correct? Staff answer: That is correct. • Dunn: How many HOA drainage ponds in the town does the town own? Staff answer: As far as HOA ponds, the town doesn't own any HOA ponds. The town does own stormwater management ponds at several locations. • Dunn: Are they on HOA property, or is it town property? Staff answer: It is a combination of both. There are several at Ida Lee. There are some at the airport. There is one that is half on town property and half on HOA property at Greenway Farm, but the town does not own and maintain ponds entirely on HOA property—the town is not responsible for any of those. If the town decided to take over this pond, it would be different than we have done before regarding how we divide up responsibilities for stormwater management. • Butler: Remind me who came up with the 35 inches? Staff answer: It came from the National Weather Service. 2IPage Council Work Session September 21, 2015 • Butler: Okay, and who decided—was it the state—that decided that a dam of this type needed to safely pass the 35 inches, or the PMF? Staff answer: Yes. And that is probably consistent with Corps of Engineers practices for more nationwide facilities. • Butler: Okay, because 35 inches strikes me as something that is wholly outside the realm of reasonable. Staff answer: It is a large number. • Butler: Yeah, a large number. A couple of questions on the table, one is ownership of the pond is a question. And but even regardless of how we answer that question, there is a question of what does the town feel is the right amount of solution to the hurt and money to put into a solution? Staff answer: That is a good question. We are not sure what that answer is. • Butler: And that's a question, I think, for us. Just trying to make sure that I am framing the questions correctly. Okay, the other question, and I think I know the answer to this, but I am going to ask in a slightly different way...is there any way to execute a project that would—let me put it this way—the solution to the TMDL issue and the solution to the PMF issue— is this not and I understand that they are separate requirements, but are they completely separate engineering solutions? Is there any way we could come up with a project that would solve the TMDL problem and at the same time help with this problem or is that just like saying okay I need a new roof and I also need new wiring in my house and there is just no way you can combine them? Staff answer: If you build just the improvements to improve the dam, they don't help the TMDL issue at all and if you build just the TMDL project by itself, it doesn't help the dam issue, but from a construction standpoint, there may be some efficiency if both of those were constructed at the same time. • Butler: I am just wondering if there is an alternative to the TMDL solution that might also help, you know, this PMF problem. Staff answer: Perhaps there could be—we really haven't looked for any of those type answers at this time. • Butler: I understand that there are two separate issues. • Burk: Out of curiosity, does that pond ever empty or is it always full? Staff answer: Once it was filled, the only work that we know was done prior to it being taken off bond was some of the sediment was removed that accumulated during the construction of the Exeter planned development. It has been full ever since. • Burk: You talk about having to remove the trees. Why would that be important to remove the trees? I would think they would be somewhat of a border to help keep the water in. Staff answer: You talked about having to remove the trees. Why would that be important to remove the trees? I would think they would be somewhat of a border to help keep the water in. 3IPage Council Work Session September 21, 2015 Staff answer: It is really the tree roots that are the problem. If they are on the dam or on any of the embankments of the dam, they can disrupt the structural integrity of the soil that has been packed down and loosen things up and perhaps allow water to pass through the dam from a seepage standpoint. So, the ownership of dam carries with it responsibility to make sure it is kept in good condition and that type of vegetation has been proven to be detrimental to the integrity of an earthen dam. • Burk: Interesting. Okay—we are not talking about ownership of the pond. We are talking about ownership of the dam, is that correct? Or are we talking about the ownership of the pond? Staff answer: I am not sure I know how to separate that. Notar: The dam holds the pond—holds the water, so it is virtually the same thing. • Burk: So, we are talking about ownership of the pond. So, would we then have to do maintenance to upkeep the pond itself just from an aesthetic standard and that sort of thing? Staff answer: We would and we believe that's part of the HOA's request. • Burk: You showed a map and you showed the watershed was not exclusive to the one development. Could one of the things that we look at and I know we don't have to make any decisions tonight—we've got time, but one of the things I was wondering about was could we look at doing a tax district in that area since that's the area that impacts that particular issue we are talking about. I've had some people who have talked to me about this and their concern first off is the tax rate increase, but it doesn't affect their HOA and now they are going to have to pay for someone else's HOA. So, they are concerned about that—other residents in the town and I believe there is other HOAs that are going to come behind us that we will have to—if we accept this one, we will have to accept a couple of other ones, is that correct? Notar: It is possible to create a special tax district. Localities can create them. Public hearings are required and it has to be done by ordinance but it is possible. • Burk: That might be something we want to consider, but of course, we need to talk to our state representatives to find out what they could do to help, because this is a huge endeavor to put on one HOA but at the same time it is a huge endeavor to put onto other HOAs that aren't involved in it. It is quite a dilemma, but I understand we have some time to think about this and so I hope that we will take that time to discuss it and talk about it and not make any motions tonight, but thank you. • Martinez: I noticed that the affected area—there is a lot of area outside of the Exeter Association that is being affected by this. So, it's not just Exeter. Wage Council Work Session September 21, 2015 Staff answer: Yes sir, as far as the drainage shed goes, it is maybe one third Exeter and two thirds other parts of the town. • Martinez: And all this impacts will be with the town? Staff answer: Yes. • Martinez: Also, too, you know talking about—in the past we have done things in the town. We have had neighborhoods that the town has borne the cost of improvements in water and sewer and gutters in specific neighborhoods. We have had to take the responsibility because there is no way we could throw that kind of lien on anybody. So, I see this as kind of the same thing. Maybe there are some HOAs that will follow-up on this and maybe other people in the town will have to help share this burden, but that is what this town does on all its capital projects. When you improve one neighborhood, the whole town [inaudible]. I think that is just a precedent that we have already established. And also that this is not just Exeter's problem. There is a whole group of other homes in that little area that this is going to impact. So, I think there is no real questions other than just the comments. Staff answer: Council Member Burk mentioned other HOAs. We know there are two other regulated dams in Leesburg that are HOA owned. Notar: High hazard dams. • Mayor: And which are they, Tom? Staff answer: Stratford and Stowers. • Hammier: Thank you, Tom. And all that contributed to the research and memo and thank the Exeter board for being here tonight as representatives. First of all, a disclosure. I live in Exeter and it certainly has come to the attention of Council that the homeowner's association may have to pass, you know, like $10,000 per household cost on to each homeowner, so for the record, Barbara, do you see that there is a conflict of interest for me as a Council Member participating in this discussion? Notar: No, you have disclosed. • Hammier: I pointed that out for the record. • Martinez: Also, too, I think that$10,000 is not correct. Is there a number—I heard Sandy mention something about it that correct number that is going to be... Male voice: [inaudible], roughly a million dollars, about$1,200 a household. • Hammier: $1,200 per household to correct that number just based on the numbers that have been disclosed tonight. A couple of questions— I kind of teed them up over the weekend but for the sake of the public record, is there any way legally to grant a grandfathering provision given that this is a huge regulation based on the fact that the pond was built in 2001? 5IPage Council Work Session September 21, 2015 Staff answer: We are not aware of any grandfathering provisions that are in the legislation adopted by the General Assembly in 2001, which was requiring existing dams as well as new dams to comply with the regulations. • Hammler: Thank you very much. And I know you mentioned, Tom, for whatever reason the state legislature decided to use the weather service, but to the extent that it is helpful for the rest of us to understand why they came up with such what seems like an unreasonable new threshold, literally 35 '/2 inches of rain in 24 hours versus 7, which is the 100 year flood projection—just when in the history of our region and in what frequency is there ever been a storm generating that amount of rain in 24 hours? Staff answer: I wish I could give you a better answer. I just got some information late this afternoon about extreme rainfalls and it does reference a storm in the mid-90s in Georgia, which had similar rainfall in a 24 hour period. And also, I haven't had a chance to research this, but there has been some rainfalls in Pennsylvania that were close to that 30 inches. I am not a hydrologist, I wish I could explain it better, but I also feel like this is an unusually high number, but it hasn't been taken lightly by the government agencies that have arrived at these thresholds and they have— after we do a little more research, we can provide you a better accounting on what might have been the history that they looked at when they arrived at these rainfall amounts. • Hammler: We can talk about this just in the context of whatever Council decides, but I think that kind of research is going to be important because I would certainly fully support a very, very active legislative agenda item to go back and look at this threshold given the cost and quite frankly the low probability of this ever happening. So, for the record, I would certainly support that. I just wanted to add to the discussion that we just mention about possibly a tax district. Certainly, you mentioned Tom that one of the reasons why it is considered a high hazard dam is its proximity to a major roadway, which incidentally is owned by the state so we need to figure out what portion of whatever it is we are all responsible for that the state needs to pay for and we need to figure out what that dollar amount could potentially be. Staff answer: We can certainly look into that. • Hammier: Just a related question, either legislative or if it is even possible legally to take action just that we think this is unreasonable and what more direct action that could take that might allow us to really move the deadline back. I would certainly request knowing if that's an option. In other words, we all agree it is an excessive amount. It is not a reasonable threshold and therefore, you know, could we take legal action to say, you know, ultimately, why do we have to adhere to this and... 6IPage Council Work Session September 21, 2015 Notar: My first instinct is that in order for the town council to take legal action, you would have to assume ownership of the dam. • Hammier: For the record, we are not discussing that on the dais. That would happen at closed session. Notar: So, you could certainly add it to your legislative agenda on behalf of the HOA. • Hammier: Alright. And again,just back to the research about the weather. We know we have had serious hurricanes come through, you know, that we've taken action thinking Hurricane Sandy was going to hit. How many inches of rain did that—the worst hurricane that Leesburg has ever experienced—how much rain did Leesburg ever get? So,just.... Staff answer: [inaudible]. From the dam safety folks perspective, this is the little bits that I have understood, pretty much the worst rainfall that can be expected to ever occur. • Hammier: Understood,just from our perspective as we consider legislative... Staff answer: I know it seems to be way out there, but... • Hammier: One thing to take—like maybe they took a national average for the weather service. We don't even know— at least I don't, what the source of that resources was. Staff answer: We have some good information to look through and if the Council wants we can provide some more details about what this rainfall amount—the significance of this amount of rain. • Fox: Many of my questions have been asked and answered, but I do have a few more. Since 2001, how many overflows of the Exeter pond have there been? Staff answer: None. • Fox: Zero. Okay, and who has taken care of—you said the town has not maintained the dam in the past. Who has? Staff answer: The Exeter Homeowner's Association. • Fox: And has there ever been safety—a failure of the dam or anything like that? Has there ever been a breach of the dam? Has there been any type of failure at all? Staff answer: Not that I am aware of. • Fox: The only other question that I have—is there similar wording in other deeds. Like the deed we are looking at tonight, is there similar wording in other deeds that may come before us that we would have to come back again and revisit this issue for the exact same reason? Notar: I believe there is. • Fox: Alright. Well, I have to echo what Katie said about the legislative agenda. I think that there is action already being taken by Delegate Minchew for some oversight legislation and I think we might want to look at supporting that, but at this point, that is all I have. • Mayor: We have a couple of different problems. One is the timeline that the Exeter HOA is under and they are looking at having to take 7IPage Council Work Session September 21, 2015 some kind of action in December. So, I have said this before but I am going to say it again. The town approved this dam during the development of Exeter. In my opinion, we took responsibility for it at that point. Yes, we off loaded it onto the backs of the homeowners of that community as we do with many other facilities. But, it was our responsibility as a town and the town council approved that development. They approved it with the dam and, you know, going back to what Marty said, I think it should be the town's responsibility. If anybody has to spend a million dollars to repair this, the town has an option of bonding out a project and paying a fraction of a million dollars every year and that's an option that really is not available to an HOA. The idea of every homeowner in Exeter getting slapped with a $1,200 bill whether it is through a special tax district or whether it is through an HOA assessment, which couldn't even happen given their bylaws as I understand them. That is crippling to those homeowners. I have no problem with the town taking over this. I think the attorney for Exeter has done a very good job saying that in the language that governed this dam, there are provisions that don't appear in the language covering any other stormwater management dam in the town, so I don't view this as much of a precedent setting decision as perhaps others might. But, I do think Exeter is under a deadline and that deadline is coming up quickly and it is going to hit as I understand in December and beforehand, I think the Council needs to accept responsibility for doing whatever is now required by the state. To Suzanne's point, yes, absolutely we should back up any members of our delegation who are trying to get, whether it is state aid or a reduction of these requirements, but if we do face a public safety situation, that's on us as a town and it should not be borne solely by the residents of Exeter. We are all in this together. We get slapped with these additional requirements from the state and federal government, which our homeowners never anticipated in a million years and now whichever council whenever it was that this was approved—actually approved it, that actually I believe does predate me! That long ago, but I do think we need to step up as a council. We need to accept responsibility for this project. We have the bonding ability. We also, based on the wonderful work that the town manager did trying to find extra money to completely finish the downtown improvements, we also had money in reserves that could be used to help out with this, but we can reduce the annual cost of this on our taxpayers in a way that Exeter just cannot. So, I would like to know the drop dead date for when we have to make a decision if we are going to effectively help Exeter deal with this situation because December is going to be here faster than we know. You know, I don't think we can wait to resolve this until the General Assembly finishes meeting in March or whenever they are going to be done next year. It will be too late for Exeter at that point— potentially too late for the Stratford Community as well and other 8IPage Council Work Session September 21, 2015 communities that have to use the Stowers dam, but this is a problem we are facing in different areas of town. I think in this case, because of the unique language that governs the ownership and easements over this dam, we have an even clearer obligation than we might have with others, but my position would be the same on others. But, I need to know a drop dead date and I don't know, Mr. Easment, whether Exeter has any information on that and when if the Council is going to take any effective action, when we would need to do that. If you want to come to the mike, that would be fine. • Exeter HOA: [inaudible]. It is our understanding that our date is sometime in November, but the reality is they told us that the total maximum flood rainfall is being looked at so that the modeling that was done at 35 inches, they are still looking at that number statewide, how they actually set that number and they plan to have that new methodology in December, so our understanding is they are not going to push us until they come up with that actual—how they are going to do this and it has been looked at in the past several years, so that number may be 27 inches, it may be 28 inches. It is probably going to be lower than 35. That will affect some of the design but it will not eliminate the need for something being done. So, our understanding is in early December, is when they will have that. • Mayor: When they start to push you, how much time do we have to comply? Exeter HOA: I think then we have got to move. • Easment: Thank you once again, Members of Council, for listening and hearing Exeter's petition and concerns. I also want to thank staff for bringing those concerns to the council's attention. It is exactly those concerns that my client evaluated which made us go back and look to see if in fact Exeter was the owner of the stormwater management pond and dam and when we looked through this, we found the deed that we have presented to the Council—the deed of easement and we saw that there is an issue. That the association does not own these structures. It is laid out in the memo very clearly, but I would like to just repeat that once more. You all have a copy of that plat which we provided which is attached to that deed of easement that says that Parcel W, which includes the entire stormwater management pond and dam is in itself a stormwater easement— a stormwater management easement. That language in the deed further goes on to say all lines, channels, inlets, structures, and appurtenant facilities which are installed in the easements shall be and remain the property of the town. Channels, inlets, structures and appurtenant facilities—further is also says the owner, meaning the developer, grants and conveys in fee simple all appurtenances and facilities located within the storm drainage easement to the town. There is not a distinction between certain types here and there and the dam and the pond. It says all appurtenances and facilities within that easement, which again is the entire parcel. So an argue— 91Page Council Work Session September 21, 2015 there is no ambiguity. Anything that is related to stormwater management, meaning a pond or a dam, that is located on the parcel is or was conveyed in 1990 to the town. Now, it may be that Exeter picked up the slack and maintained those because the town wasn't performing its functions; but we are not asking the town to take on any additional obligations that in our view the town doesn't already legally have. Now, I will make one more point with regard to that precedence issue. We do believe that the language of the Exeter Deed of Easement is very unique. I have performed some research and granted, Ms. Notar, I did not look at every deed of easement in the town, so I can't say with certainty that does not exist in any others, but of the three other deeds of easement that we pulled shortly after 1990, there was no language similar to the Exeter language, that fee simple conveyance language did not exist in those others. So, we are asking Council to recognize and acknowledge its existing ownership and maintenance obligations for both the pond and the dam. Now, I do understand that comes with significant challenges, costs, and obligations. But it doesn't seem equitable for my client, who we have given the opinion to does not own those structures to have to take on those obligations. I yield any remaining time to questions. • Butler: A few items. One on the November or December deadline that we have been referring to. What exactly is Exeter required to provide at that time? Easment: If you don't mind, I will defer to Clark, who might know a little bit more about that issue. Exeter HOA: Yeah, I mean [inaudible] the process of getting the [inaudible]. We don't have the construction done by that date, but we have to now start going through the process of getting the maintenance and operations certificate. We have got to start that process, which means to be compliant we would have to come up with all the things that Tom outlined and that whole process will have to go through at that time, so we would have to come up with the engineering and we would have to start the process at that time. I don't know when the completion—they would say hey you have to have it done by June or whatever, but we have to get that certificate. I don't know whether they may say you have got to get that certificate in 60 days. You know? Whatever they set the timeline on getting the actual maintenance and operations certificate is what we would have to comply with. I don't know exactly. • Butler: Okay, moving ahead. Let's say they say, hey look, you have got to provide whatever it is on December 15 —what exactly do you have to provide on December 15 and what will that cost you to get it? Staff answer: It is our understanding that we have a $20,000 number as the engineering work necessary for putting the package together, which includes the downstream inundation analysis and other listed technical documents that the state needs to look at when reviewing the Exeter 101 Page Council Work Session September 21, 2015 Dam condition for them to issue a Certificate of Operation and Maintenance. It is very likely that they could issue a temporary certificate for operation and maintenance if the documentation says the existing dam doesn't meet the standard—improvements are necessary. We need time to prepare the design and construction and then construct these improvements. We need a time extension for a reasonable period to do that. But, the initial submission right now is scheduled to go in November from Exeter HOA to the DCR folks. That is being delayed by DCR with some flexibility because as we heard earlier, they are relooking at some of the hydrology and might reduce that amount, which the engineers would need the new or revised amount to complete the work. So, I am just kind of making deadlines up. By late winter, early spring, with the new rainfall information, I would say that the DCR folks would be expecting a package from Exeter and from there the whole process is really—a critical path is going to be what improvements are necessary. How long will it take to design and build those. Exeter HOA: We were instructed by the state [inaudible] to apply for the temporary certificate. In June that is kind of what they were saying until we got this delay, they said go ahead and get the temporary certificate, get this in process. • Butler: What would it cost you to get the temporary certificate? Exeter HOA: Well, we have done the study. We have done most of the study, so we have that aspect done. Then it is you know, [inaudible]. • Butler: Okay, so how many dollars will it take to apply for the temporary? About$20,000 more to apply for the temporary certificate. Exeter HOA: [inaudible] • Butler: You don't sound too firm on that number. Exeter HOA: [inaudible] • Butler: Okay, because the deadline that the Mayor is talking about, I am trying to find out what the real deadline is and the real deadline isn't the $800,000 for construction. That is much further on. What I am trying to find is— okay, and Tom your estimate is that since the DCR is continuing to evolve these rainfall numbers that packet might not be required until sometime in the spring, but we don't know. Staff answer: Yes, so the typical extension time is 120 days. Exeter would have to ask for another extension, but it is likely. Exeter HOA: And that is our understanding as well from our discussions with the state. • Butler: So, if you ask for an extension, that wouldn't cost you any money. You wouldn't need to spend the $20,000 to ask for the extension, correct? Exeter HOA: It is possible unless they come back and say you may have an extension for the other conditions and requirements you need to meet, but you absolutely have to have the temporary operating 11 Page Council Work Session September 21, 2015 license and that is something that may be required before another extension is granted. • Butler: Okay, so we still don't know. It could be December, it could be April. We are not sure. Exeter HOA: It could be. • Butler: I think that would be a good data point for the council to noodle around since to the Mayor's point—December is coming up real quick. Exeter HOA: I guess our concern is getting that initial temporary one that implies ownership. So, we are trying to avoid getting [inaudible] either way between us getting that temporary operators. We can't actually set that timeline so that neither one of us until we decide who owns this and gets that operation and maintenance certificate is the legal owner. That is where we are trying to get. We are trying to not have to get it and then say well now it is not ours. Now it is yours but it is already... • Butler: Understand. Okay,just also trying to make the point that you know when Council is pushed to follow deadlines that we find out later weren't real deadlines, it doesn't always set well. So, it might not be a bad idea to ask for an extension for 120 days so we will know exactly what the deadline is and what we need to do by when. • Easment: So, Council is aware and to respond to that, we have already done that. We are operating under a current extension given the ownership issues and legal matters that have already arisen from this. So, while we understand that may be something that is possible, we have already done that once and whether or not that is again a possibility is questionable. • Butler: Right. It is just we don't know. Which is my whole point. I'm not saying that's obvious, but I am saying—especially if the DCR is delaying it themselves. There are still open questions and the difference for us to make a decision by December or by April in a case like this is huge. Huge. Because April we are in another budget cycle. December is an immediate thing where we are, you know, may or may not be making priorities against other things. April—a whole lot different discussion, which is why I asked. I did run some quick numbers and a million dollars —not clear to me that the HOA couldn't borrow it if they needed to for something like this, but regardless, if it was bonded one way or the other, it would be between $70-80 thousand a year over 20 years assuming that was the length of the loan and assuming somewhere between a 3.5 to 5% interest rate, so that is a lot less scarier of a number. If you add in the $60,000 every six years and the $21,000 in maintenance that was mentioned in the staff report, it comes out to be call it$100,000 a year over 20 years. No conclusions based on that number, I am just suggesting that is a different number than thinking that somebody has to stroke a million dollar check. Thank you. 121Page Council Work Session September 21, 2015 • Burk: The only question I had is if you are contending that the town should have been the owner of the pond all these years and the HOA has been doing maintenance on the pond all this time, is there going to be some suggestion or some thought that there needs to be a reimbursement for the money the HOA has already spent? Easment: I can't speak for my client on that. It is a legal issue they have to discuss, but I can say that so far that hasn't been an issue that I have been aware of that has been brought to the table at any discussion. • Burk: It might be something that you all want to discuss so that we are clear on that one also. If you are willing not to carry that further and let it go, that might be to your benefit at this point. • Hammier: This might go under new business, but just for the sake of posing the question, given the cycle that is currently happening where there is a group reevaluating the rainfall threshold numbers and it doesn't coincide with the General Assembly, which you have already pointed out, what can we be doing now to influence that group because that's what I think we should also do concurrently so that we are actively representing Leesburg relative to a reasonable level of rainfall which presumably will be lowered, hopefully significantly lowered back to a reasonable amount like the 100-year seven inches, in which case the cost will come down considerably and in the meantime, we should be defining the strategy for ensuring that we don't take on the liability of state property and they also —that we start defining what it is and I am sure that is going to set a precedent for how these dams impact their property all over the state so that we can assist the entire state with that question so I would appreciate knowing who is involved in this decision about the rainfall and how we get involved in influencing that immediately. • Fox: Just one quick question. Why hasn't the Exeter HOA just sent the deed back to the state saying this is not our dam. Have you tried that? Easment: We have communicated with them. We have given them pretty much the exact same information we provided to Council. But, they have their own regulations and guidelines that they go under in the law and basically what it says is if you are the owner of the property, you are automatically deemed to be the owner. Now, when the legislators came up with this language, they obviously didn't consider a situation in which we find ourselves in where yes, Exeter does own the land that these structures sit on, but under the operable language of that deed of easement, the structures belong to the town. So, what we need to do is convince the state that Exeter does not own these structures— that they are town property and part of that is getting the town to acknowledge those ownership interests. We have made those arguments; however, they are still considering Exeter to be the owner of the dam for those purposes. 13 ' Page Council Work Session September 21, 2015 • Dunn: And I assume the HOA—the HOA is not trying to claim that they haven't had ownership going all the way back to the beginning. They are just claiming that they just recently became knowledgeable that they don't have ownership. Easment: So, you all are familiar with the organizational structure of homeowner's associations? They have high turnover in their volunteer leaders. Management companies change. Law firms change. When my client asked us to evaluate this issue, I did some digging back in the day and this is what we discovered. This is a recent discovery. I am not sure if prior council was aware of this or the board. It may have been. The issue is present board, present council and present management have discovered this issue and we have to take some action with regard to that. • Dunn: Looking at the deed, where exactly are you referencing that the town is the owner of the property? Easment: Just a clarification. I am not referencing that the town is the owner of any real estate, but with regard to structures and appurtenances that serve a stormwater management purpose, that can be found in paragraph Al of the deed and also on the very last page of the deed, about a middle of the way down, a third of the way down, there is language that states the owner grants and conveys in fee simple all appurtenances and facilities located within the above sanitary sewer or stormwater drainage and water easements to the town. That's on the last page. • Dunn: And the—but the dam was built by who? The original owner? Easment: I'll defer to staff on that. It sounds like it was originally constructed by the developer. Staff answer: Pulte and Richmond American developed Exeter, so it was the developer—Pulte in Exeter under some corporate names that have constructed all the infrastructure in the Exeter Planned Development. • Dunn: Okay. And when we have a developer putting in infrastructure that usually becomes the property of the town—is that correct? Or at what point does it? Staff answer: It becomes the property of the town when it is completed and conforms to our standards and the approved plans and it is accepted into our inventory and the performance bond required under development regulations is released. The easement documents usually are the tool that identifies what has been transferred. It has been the practice of the town to make sure that the easements are in place before any construction is done and that the facilities constructed in those easements—it is usually water lines, sanitary sewer lines, storm drainage pipes are conveyed to the town and the town owns those facilities. In the case of stormwater ponds, particularly wet ponds, it has been the practice of the town not to accept the wet ponds because of the potential liability of both care and maintenance of it and in fact it is 141Page Council Work Session September 21, 2015 some place that personal injury could occur due to the water features, so we have tried through the practice as documented in our design and construction standards and other places that we will take the pipes and we will take the inlets but the ponds, particularly wet ponds and the embankments are owned and maintained by the land owner. • Dunn: Okay and looking at that paragraph that you referenced, I am not an attorney, but I did stay at a Holiday Inn Express. I do have experience in title and deeds. I read that paragraph to be that those items to be installed, projecting future, not what has already been done, would be the property of the town. We will have to let the courts decide that one unless we come up with just deciding we will make a political decision here. And I think this really comes down to two things. We are either going to make—and they are completely separate —either a legal decision that it is our legal responsibility for us to take this over because there is nothing that has gone before this point that would other than some light language in an easement deed—not an ownership deed, that would possibly indicate that the town has some responsibility for or that we are just going to make a political decision and say we are going to go ahead and cover this for a community. I think the legal argument is very light at best. Nothing personal. And I think that if it were challenged, it would be a tough case to win. So, it comes down to the town and I guess the town council deciding if we are going to make a political decision, because that is completely all this is—is whether we are going to go ahead and start taking on the responsibility for HOAs responsibilities. I will give you an example. Right across the street from you all is where I live. I live in Balls Bluff. We just had the town, for us, from the developer, build a park. The citizens who bought their homes—me. Bought my home in that community with the expectation that we were going to get a some 20 acre park. It is going to cost close—what was it Kaj? Two million? Something like that. The problem was is that it was taken out of our hands because the negotiation aspect of it was with the town. The town and the developer negotiated about a what was it, 600-900,000 something. It wasn't what we thought we were going to get. But now, if we make this political decision, myself and my other homeowners can come back to this council and say you guys owe us another $1.4 million or$1.1 million, whatever it was you did not properly negotiate for us with the developer. So, now, we want our full park because we were told that we could have that. And now, I am wondering while it is easy to say we are going to pander for votes and get a whole bunch of citizens on our side because we are going to give them a million dollar project, how many more people are going to ask that? I know that we hear from Beauregard. They are always asking for—there you go. They want their private streets taken care of by the town. Or Linden Hill. They have come to us for their private streets taken over by the town. These are decisions that homeowners and associations make 151 Page Council Work Session September 21, 2015 going back years and years and there are some other associations that are older than yours or definitely older than mine that should we start making these political decisions, because it is convenient then we have to also start expecting how many other associations are going to be coming before us because I don't think the weight is here on the legal side. Sorry. I don't think we will have to go to that point of it having to go to a court situation but I think that we have to recognize this for what it is and this will be a political decision that is being made. Because, I unfortunately do not see the legal weight on this as far as ownership goes. We already determined that it is not going to cost $10,000 per household—that we are looking at about$1,200. And I don't know what your account is —what your balance is currently in your HOA— I know unfortunately we seem to be sitting on about a million bucks and I don't know why we've got that much money in our HOA, but you're not getting it by the way. You can't have that. And you all have been paying taxes on that property, is that correct? I mean this has just been part of your overall tax but you haven't divided that up saying no, that wasn't ours. In other words, the knowledge of this ownership has only been something that is new. It is nothing that you have tried to maintain in the years past. Easment: As far as we know. That is all I can say today. We haven't done the research to find out if that is in fact the case dating back to 1990. Perhaps there was a few years where the association was operating that way and then through the years of volunteer leadership, it just became... • Dunn: I don't know. Sandy has been there as long as I have been here in town, so you should have left him at home. He has been there forever. I hope that's okay to say, Sandy. Question for staff— so the town decides to pay for this. Coming out of General Funds or Utility? Which pocketbook is this going to come out? Staff answer: It could not come out of utility fund since it is not water or sewer line oriented. It would have to come from general fund through the capital projects fund. • Dunn: Okay. Then the other question I have is what project—should we decide to pay for this—what project is going to be put on hold in order to do this one? Staff answer: We would have to look at that. • Dunn: Or if we don't take it out of a project and we continue that, what other cuts would have to happen in order for us to pay for this because right now we don't have the money to pay for it. Staff answer: We have not looked at anything like that at this time. • Dunn: That would be something I would like to see—where else are we cutting in order to pay for this. • Mayor: Mr. Easment, the council is going to need to know when we need to take action and our process is such that it can take us two weeks to get something on an agenda for a vote. So, if this is going to 161 Page Council Work Session September 21, 2015 require an additional work session discussion, which it might the majority of Council will need to approve that it go on a future work session. Generally at the Monday night work sessions, we do have additions to future meetings, so we could put it on the next work session in about two weeks for more discussion or at some subsequent one, but normally we will discuss it in work session before we vote. So, we will need someone to start monitoring the time period from your perspective and understand that we can have a two week lag time before schedule something and actually make a decision. It might be longer than that. But, we are going to need your assistance in that, so we would appreciate it very much—Exeter keep us informed of what kind of deadlines we are up against. Easment: We will prepare a memorandum for the Council's review that sets forth what our deadlines we are under, which deadlines can be pushed back and what the requirements actually are especially with regard to that upcoming December deadline. Exeter HOA: I think Dave did a pretty good job of making an estimate between $80 and$100,000. I would guess more like $90 to $110,000 per year for 20 years. Just for your information, that is about 12-13% of our overhead budget so we would have to make some cuts— 13% of our budget would have to go for this at$100,000 per year for 20 years. We don't have that money. We don't have the ability to tax. We don't have any way to raise that money, so we would have to cut services— whatever we do within Exeter to do that. We do have a large reserve but that money is all allocated for the items it is supposed to be allocated for. We have parking lots, we have the private roads. We have pools. We have—whatever facilities we have—that money has been built up to take care of that obligation in the future, so we have no cash sitting to do this. We have never planned to do this. It has never been an item. I think Dave's number that he came up with—that's between—if you look at it over 20 years, it's going to be $2 million - $1.75 million. If you want to look at that as a per household charge, it's not the $1,200—it would be more on the order of$3,000—2,500 to 3,000 over 20 years which is what the actual cost of that would be so, but I think your estimates are pretty good on what the cost to Exeter . would be on this. It would be somewhere between $1.5 to $1.75 to $2 million over the course of the loan. • Butler: I was going say, yeah, it was only like a 30 second estimate so, just trying to be close. • Easment: Just one point in close, if I may, Council. Mr. Dunn did reference that this may be a political decision; however, I would suggest and submit that there are legal reasons behind that political decision. There is a legal distinction here that is not shared by other HOAs. I would just request that before the Council makes a decision, that you do review that deed of easement, review the memo we provided and again we appreciate your time and consideration. 171 Page Council Work Session September 21, 2015 • Butler: I would just ask Council— at some point if we are going to, which I assume we will, discuss whether or not the Council is willing to take ownership of the pond, I would request two things. One, I would request that we get the language in the Stratford and Stowers agreements as well and I would ask that we discuss that specific thing in closed session since it is a legal discussion. b. TLZM 2014-0005 Patriot Self-Storage Park Michael Watkins gave a brief presentation on the redesign of the proposed self-storage buildings. Key Points: • The applicant has provided revised elevations for building 1 that take a story off the front of the building creating a stepback approach to the height of the front of the building. • Building 2 remains unaddressed. Council Comments/Questions: • Mayor: Before we go to the applicant, Mr. Ecker, you are here. The impression I got from your email is that you were more satisfied with this design than you were with the previous design, is that correct? Ecker: I guess for the record, I was stating that I believe the applicant is moving in the right direction, but I would not state that I am 100% satisfied. As I presented in that email, I believe if we took a little bit more time to potentially terrace the building in the way that I presented, it could be a little more accommodating to the neighbors and the community. But, I appreciate the opportunity to speak. Tom Chamberlain thanked the Council for the opportunity to bring a different option for consideration. • Adjacent properties will most likely develop with similarly massed buildings. • Clear effort to reduce the impact of the mass on the neighborhood has been made through the reduction to three floors in the front of the building. • Would caution the movement back from the street would reduce square footage and increase cost. Mr. Brewer, architect for the project, presented the architectural changes that have been made. • Changes were made using different sight lines that would obscure the bulk of the building. • Reduction in height from the maximum height for the three story section. • Changes to make the ground floor look more active included adding glass to indicate windows. 181 Page Council Work Session September 21, 2015 Council Comments/Questions: • Dunn: I appreciate what you have done and I do think that it looks less institutional than it did before, so I think it is an improvement. Still pretty big. That's a lot of space. But as storage units go— storage facilities— it looks good. It is not your average storage facility. I think that what you have done is a good improvement, appreciate it. • Butler: One question for staff, one of the things we asked for last time was you know if we voted this down and/or they went and did a byright development, what would be the summary of all the proffers that we would be losing? And I think they are going to do it one way or the other, but basically what is a summary of the proffers that we would be losing? What is the trade off here? Staff answer: I don't have that slide for you, but included in the prior proffers were basically zero monies for the transportation (appendix b) and the fire and rescue contribution are the two principal proffer guidelines that apply to this project. To follow up with the other fiscal analysis that we were asked to provide—we estimate that there would be roughly$45,000 a year in property real estate taxes, $200 in BPOL and$150 in sales tax. That is based on gross income and receipts of $200,000. Those are provided by the applicant and we have reviewed those numbers, so that is additional information for you. • Butler: Okay, so if I was going to put a number on the total proffers, what would you tell me? Staff answer: Zero. • Butler: So, they are providing zero dollars in proffers? Staff answer: Right. • Butler: So, we are giving a rezoning for.... Staff answer: I could say that per your proffer guidelines, you are receiving zero dollars. • Butler: I do think this is an improvement, number one. Number two, I think that the total height of this building is not as significantly above— like say the height above sea level is not significantly above the hotels. I am still trying to come up with a compelling reason why we wouldn't just say do by right whatever you want and if it takes three buildings, so be it. Still working on that issue. Thanks. • Burk: I have to say this, but Dave, I couldn't hear your question—what you were asking in regards to proffers. • Butler: Yeah, what are receiving in proffers and the answer is nothing. • Burk: By doing the rezoning, we are receiving nothing? • Butler: Yes. • Burk: And then by right, we would be receiving... • Butler: Nothing. • Burk: So, nothing to nothing. Nothing changes. • Butler: Right, so then the question is what is my incentive to do a rezoning. Sorry, the acoustics aren't really good up here and I do 191 Page Council Work Session September 21, 2015 apologize I wasn't here at the last meeting and I was a little confused by the pictures that you passed around. I am not sure where they are. The white boxes that you are showing are not your buildings. Brewer: They are on property that is owned by the same ownership of this property and that they are actively seeking to develop. In developing that parcel, the Crescent District requirements would have us have up to three stories and at that face of property line and that would be the volume of those buildings on that parcel. • Burk: So, this thing you are talking about here, this white thing. That's a future building? Brewer: Correct. Based on the requirements of the Crescent District, bringing everything up to and engaging the sidewalk and the street. • Burk: Okay. The picture that you have up there, that's illustrative. Are you agreeing to put the trees in? Brewer: The trees are a part of the site—actually I didn't put all of the trees in that are shown on the site plan because it would have obliterated everything, but those are the trees that are between the sidewalk and the building and there is a group of four or five trees that are in the space between the sidewalk and the curb also. • Burk: Alright. I guess I still a little confused by the building. You are just saying by showing these pictures that you can build—you could build a big box building like this. Brewer: We were just trying to put this in context of what is going to come and the comment that was made that you are going to see this building down to Market Street. As things get developed, it is physically impossible to see it. • Burk: Oh, okay. Now I understand better what you were trying to accomplish here. Okay. Thank you. • Martinez: I appreciate the fact that you came back with some changes —you made it more attractive. I am still concerned about the mass. I guess I'll just leave it at that—see where we go. • Fox: At the last session, there was a little bit of talk about maybe having that front building be three stories, the back building be five stories and it looks like you decided against that. Why—why did you do that? Brewer: As I understand it and I am not familiar with all of the details. [inaudible] there is a certain threshold of square footage needed to make the project viable. We were trying to maintain that, but each time we stepped back, we lose square footage, plus there are increased construction costs, because we have to move bearing lines that we are creating that have to be [inaudible]. • Fox: Remind me again the height comparisons. So, if you took that building and you compared it to the Homewood Suites and the Hampton Inn next to it, how would that compare? I can't remember if there is a slope down so they are almost even. I just can't remember. 201 Page Council Work Session September 21, 2015 Brewer: You had those in one of your slides. I believe the top of the building at the five story point was about the same elevation above sea level as the hotel because of the grading of the building, plus we aren't using typical floor heights. Because of the construction that we are using, we are only like a 10 foot height floor to floor where a typical office building would be 12 plus, which is why we are able to keep this building more compact. • Fox: Okay. And you said the back building would stand taller at this point than the flyover for the bypass, am I correct? Brewer: I believe so, yes. • Fox: One last question, this is for Mike. If I heard correctly, and I am not sure I did—this is why I am asking. The proffers for transportation, fire and rescue would be erased if they built by right? Staff answer: Because the applicant has come forth for additional building height, it is a rezoning. In a by-right scenario, we would apply the Crescent district design standards and it would be reviewed administratively. Therefore, we would not apply proffer guidelines. So, for commercial rezoning, we typically apply the Appendix B, fire and rescue—those are the two principal ones that apply to the commercial rezoning. • Burk: Now I am confused again. Sorry. I thought—Dave you just said that it is a zero to zero comparison. Staff answer: Right, the applicant's proffers do not include a contribution towards Appendix B or Fire and Rescue so it is zero. The proffer guidelines have an amount. The applicant has not included that in their proffers, so it is zero. • Burk: Have we asked them to include it in their... Staff answer: Yes, ma'am. • Burk: And they have decided not to? Staff answer: Yes. • Burk: Whoa, that is interesting. Staff answer: I apologize, I don't have it with me. One of the things that the applicant has used in demonstrating why they haven't included the transportation guideline is the net impact on the transportation network with the self-storage building—there are relatively few trips associated with that particular use. Their justification is their net impact doesn't warrant the proffer guideline. • Burk: What about fire and rescue? Staff answer: I'll let them address why they didn't do that. • Mayor: Would you like to address, Mr. Chamberlain, and team why you didn't include any proffer for fire and rescue? Chamberlain: I am not sure how to address this to be perfectly honest. I think what we are bringing you is a product that has little or no—zero impact on schools. Little or no stress on the utilities provided and we have a product that compared to our 17th Street shopping center, I will tell you will be a cash cow for the town of Leesburg. Once your tax 21 Page Council Work Session September 21, 2015 department gets ahold of us and finds out the income flow—this is after the building is stabilized—you have a right to ask for it and we furnish it to you— it is available. It is not private information and it will be nothing but a tax producer for you. I thought that was a fair compromise from us and from the town to work it out [inaudible]. It stresses no part of your operation and produces very large income for you. • Mayor: Mr. Chamberlain, there might be some concern amongst some members of Council that any new structure could present an increased fire risk and in that case, Council members might wonder why there was no contribution proffered for fire— at least for fire. I can see the logic of your transportation argument, but buildings do burn sometimes and the fire department needs to respond. Chamberlain: We hope that wouldn't happen. I mean, you address it in a lot of ways. You have a system that will be compartmentalized in each floor so that you have total sprinkler control and no [inaudible] and those close offs that you seal. So, you do have—the building itself is fire resistant. Structurally, it is concrete and steel with compartments in it. The opening at the top allows circulation so whatever the heat, humidity, whatever the situation you are dealing with it and the sprinkler system sits in that same area. So, you really have a threat of fire greatly, greatly reduced. I mean this is a [inaudible]. You know, we have two of the same things out Seven Corners. Two of my grandsons have them at Merrifield. They do not visit them. I mean we only go to ours when it is required to find some file that we have put away that is ten years old. We may not go there for months so you don't have constant personnel, people or outside tenants walking in. They just put this away and hopefully forget about it. They don't, but they are things they can't or don't want to get rid of so they put them away so they forget about them. I know it is a strange animal to talk about but that is the way it works and there is a [inaudible] effect on the [inaudible] to make sure that fire [inaudible]. I just cannot imagine what can go on in this building and incidentally, I might add of all the ones I have visited and that is a question I have asked, there has never been a problem in any of the ones that are operational and they continue that way. • Mayor: Thank you. Mike, do you have now the proffer guidelines? Could we hear those please. Staff answer: Thank you, Lee Ann, for bringing up the slide. There is $114,142 for the transportation contribution and$25,275 for the fire and rescue. • Mayor: And that is what our guidelines would recommend? Staff answer: It is based on the ratio of the square footage to the appropriate amount per unit—in this case it is on a square foot basis— 1000 sq. ft. basis. • Mayor: Okay, so am I looking at totals there for the entire project? 22IPage Council Work Session September 21, 2015 Staff answer: Yes. c. Obscenity Laws/Zoning Barbara Notar presented legal background on the regulation and zoning of adult oriented merchandise. Key Points: • Many complaints have been received about the window displays of a shop located at the corner of Market Street and King Street downtown. • The shop has not broken any laws. • State Code, which is the basis for town ordinance, is based upon the definition that the Supreme Court has laid out defining obscenity. • The definition of obscenity involves a three part test: o Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); o Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and o Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value. • The town and the state have tailored it down a little bit to be defined as something that the dominant theme or purpose is an appeal to the prurient interest in sex— a shameful or morbid interest in nudity or sexual conduct that goes beyond customary limits in candor in description or representation. • This is criminal law, which must be strictly construed and must be proven beyond a reasonable doubt. • In regards to juveniles, the state and town codes state it shall be unlawful for any person to knowingly display for a commercial purpose in a manner whereby juveniles may examine and peruse any picture, photography, drawing, sculpture of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to juveniles. • Obscene material is outside the protection of the first amendment of the constitution, but pornography is in many ways. Localities may prohibit its dissemination to adults as well as children. • Obscenity can exist in the privacy of your home. • Material may have an explicit sexual content, which while perhaps pornographic falls short of the definition of obscenity. Such material 23 IPage Council Work Session September 21, 2015 may be entitled to the protection of the first amendment in so far as adults are concerned. • The Commonwealth's attorney would have to prove beyond a reasonable doubt that the owners of the shop knowingly afforded juveniles an opportunity to peruse harmful material or took no reasonable steps to prevent such perusal when the juvenile's opportunity was reasonably apparent. • Being able to see items for display in a store window does not satisfy the definition of perusal. Peruse is to examine, consider, or survey with some attention. • The areas of town where Adult oriented merchandise sales can be located could be regulated through zoning, but the shop in question would be a non-conforming use and therefore continue to be allowed. Council Comments/Questions: • Dunn: Looking over the packet and what you went over tonight, am I understanding it correctly that there is nothing that we would do that would cause the closure of this shop? It could require the shop to cover up some of its displays that may be visible from the street—is it a possibility or that not even an option? Staff answer: Could we require them to do that. I don't think so. Could they do that to be a good corporate citizen? Yes, and they have in the past. • Dunn: Even if we create a new ordinance, the most it would do is they would have to conform to some of the new regulations? Staff answer: No, they would be a non-conforming use. We could not prevent them from doing what they are doing even if you enacted a new section of the zoning ordinance. • Dunn: So, let's take this out of the business in question. I was going through the regular magazine section the other day of a store. There were no adult magazines there, but I remember when I was a kid reading Mad Magazine, probably about the age of my son— 13-15 somewhere in that range. Well, I can tell you this—that ain't my Mad Magazine that is on the rack today. Holy mackerel. There was some very questionable material in there. Could that store owner be subjected to some of these guidelines if Mad Magazine is now having very questionable material? Staff answer: That store is subject to these guidelines. So, I'm sorry, the zoning guidelines or the obscenity regulations? • Dunn: Well, if we were to act zoning regulations? Staff answer: Yes, any store would have to abide by those guidelines. Any new store, is that not what I said? New store. • Dunn: So an existing store could still... Staff answer: A nonconforming use. • Butler: I guess there is a number of town councils around the country that have had to address this issue at some point. Basically I think what 24IPage Council Work Session September 21, 2015 I hear you saying is we have had some requests to not renew the lease or close the shop down and we have no authority to do any of that. Staff answer: None. • Butler: And since we are a Dillon Rule state, the state has to give us permission or do those things. We can't just enact a law to allow us to do it and the state hasn't given us permission so that is a dead issue. Cannot even be considered. Staff answer: Our town code is as strict as it can be under the state code and the supreme court case law. • Butler: So, I guess, how should I put this delicately or maybe just permit it—what I am hearing is there is a difference say for example if a store sells whips—take a hypothetical example. Where there are a lot of uses for whips and a lot of stores will sell them for whatever uses. Jockeys use them. Elephant and tiger trainers use them. So, the fact that a store sells a whip is not a problem, but if that whip might be hung suggestively around a scantily clad mannequin, then that might be suggestive of a different use and may start to creep into the category— one of the categories that you may have mentioned above. Staff answer: Yes. • Butler: Well, for instance, there is a difference between—say there are some objects in the store that taken by themselves are just objects and they are perfectly fine even if all of us in this room know what those objects could be used for but if there is a suggestive—say the object with a picture or a depiction of it being used in a patently sexual way, that could be on the other side of the line and be dealt with? Staff answer: Hypothetically yes. • Burk: Well, I most certainly would be interested in amending the zoning ordinance, that's for sure for new buildings, but your explanations may be because they are so legalese to me leave me wondering what is obscenity? Staff answer: You know, that is a very good question and I wanted to go into it, but I could talk about this for a long time. I am only really touching on the surface, so I asked the Deputy Town Attorney when was the last time anything in town has been found obscene? Go research. We could find nothing because have you been to the movies lately? What is obscene now is child pornography. That is what the law enforcement agencies are really out to protect and enforce. I could not give you an example of anything obscene in the last 30 years for adults. It's child pornography. • Martinez: I do appreciate your definitions. I know how amorphous they can be. How vague. What I would like to do is see if we can figure out if[inaudible] where we can section off maybe these questionable kind of stores—establishments, but we are pretty much left with what we've got. There is not a lot we can do, correct? Staff answer: Correct. ' Page e Council Work Session September 21, 2015 • Martinez: My biggest concern is we have parades and we have events that go up and down and families are there. They are walking. They are right there. Is there any way we can work out an agreement, a memo of understanding or something with the store that they at least cover up during those events? Staff answer: It wouldn't be enforceable. • Martinez: I know it wouldn't be enforceable, but it would be some good will exhibited by them and the fact that we do care about the fact that we have families at those events that are walking up and down King Street and that is objectionable to a lot of them. Staff answer: I will say that town staff has talked to the store manager, the woman who worked there at the time and they did— I think in response, well I know, in response to the emails they did tone down their displays—their window displays. So, I do think they are interested in not causing quite such a stir. I believe they are voluntarily trying to tone things down. Getting into an MOU with them regarding this—I think you are in sort of dangerous waters. • Martinez: Okay. I'm just trying to find compromise that works for everybody and from the day they got there, I have been concerned about the fact that you know they have the right to exist but on King Street, that's where a lot of our residents go up and down and I was really concerned about that. Staff answer: I will say also that I informed the shop and asked them to inform the owner of the shop that we would be discussing this tonight so I hope they are watching. • Martinez: So do I. I guess that's all I've got. • Hammler: Thank you Barbara. Thanks to everybody in the community who has raised the issue. I think that I can only speak personally but I have had many of the same feelings going by the store personally and had asked many questions since it started and opened to the town attorney. And the reason why I asked for this work session was I think it was important from a perspective of transparency that the entire community know that we have received so many emails as well as what our options are—or in this case the limited options we had as a Council for enforcing anything based on federal, state or local ordinances. That being said, I think kind of back to this good corporate citizenship, for starters, how many emails in total have we received complaining about, again, call it this quite frankly there is a specific statement earlier about sort of reasonable people coming to terms, but it just seemed like the store had crossed the line and we had a spike in emails because it just really went past that reasonable—almost like everybody agreed okay fine it is like a Victoria's Secret type of retail establishment, but it just seemed to be pushing the limits. But, how many emails did we in fact receive. I asked this days ago so we would have it available tonight. Hopefully we have that number. Staff answer: I just need to find it. I will tell you. 26IPage Council Work Session September 21, 2015 • Hammier: And I say that and it sounds like to some extent you may have already followed up, Barbara, but I would support sending a letter from Council with a copy of every email to the store owner and basically requesting good corporate citizenship, for starters. I would certainly support now moving forward on a special use district. We all know that unfortunately the current store will be a non-conforming use and it will not be applicable, but those are at least two things we can do. I guess just sort of a couple of other comments,just for me personally. It is interesting I have had business meetings for instance at Lightfoot. Professional, executive bankers going by and just almost embarrassed with their clientele that they are saying we just sort of call that Le Tacky. Any walk of life, different types of constituents just feeling that sort of a—expressing a sense that this doesn't really display what we consider the values that certainly—those of us that might reasonably want some, you know, good corporate citizenship to represent us with that kind of retail establishment. That being said, you know, to be honest, also I am the type of person who will kind of at least raise an eyebrow just opening up any newspaper—local newspaper, national newspaper. Just look at the ads. Do we, honestly—whether it is a diet ad or do you really sell that many undergarments for ladies, that's always what the ads are. It is essentially the same sort of issue here relative to the displays and how women are portrayed and there are many classes that you know, I think as a society that we try to integrate into our educational system at all levels, to try to at least express to girls that you are going to see all these images and it doesn't mean that you are a sexual object. That we need you to know that we value you as individuals. So, I know that proactively society through our educational system that we do our best to try to communicate that. Unfortunately, legally as it relates to what the town council can do, unless someone has any other suggestions, those are the only two things I can support and think of which is moving forward with a special district as well as sending a letter. • Fox: I have a few things. Just real quick. When you first had a presentation, you said something about an average person from prudish to liberal. How is that standard determined? Staff answer: Well, it is a reasonable person and to answer your first question—it is a three part test—it is a three pronged test so you have to meet all three. • Fox: When you said that this non-conforming use would be in effect until the owner doesn't own the building anymore—what about if the lease renewal? Is there any standard there? Is there anything that can be done that way? Zoning Administrator: When it comes to the non-conforming status, should the town council direct staff to devise regulations that would not permit this in the B-1 district, but permit it someplace else, because this was legally established when it was, so long as they continue to do what 27IPage Council Work Session September 21, 2015 they have been doing and don't stop for a period of two years, they can remain there in place in perpetuity. So, there is nothing you can do. You can adopt ordinances that prohibit it all together, but because they were legally established at a time when there was no prohibition against it, they remain in place. • Fox: So, are you saying that if this particular shop, business, decided to take their business and move somewhere else and there was another shop that came under a new lease within those two years, they could do that? Staff answer: No. If this business closes for two years, they are gone from that premises for two years, someone else comes in. If you have regulations that say sell this that or the other that qualify as an adult oriented business that are no longer permissible in the B-1, then no new business can go in there but if this business is here, as long as they continue doing what they are doing there is nothing we can do to make them stop. • Fox: Question on the legal side, I suppose. Maybe for the officer. I was asked by a constituent if it is unlawful to picket a business. Staff answer: It is not unlawful to picket. The concern then would be whether or not there is any obstruction for the free flow of the public on the sidewalk. • Fox: Okay, thank you. I guess in closing I just feel like we are weighing human decency against what Virginia State law says so in my opinion this is another issue for our legislative agenda and if we want to make any real changes we are going to have to go to the state and make those changes. • Mayor: Barbara, if private citizens wanted to picket the business, would they need any kind of permit from the town? Staff answer: No. • Mayor: As long as they are not impeding either vehicle flow or pedestrian flow on the sidewalk, they could picket on the sidewalk. Staff answer: Sure, that's correct. • Dunn: So, regardless of this business or any others, so they could not be on the sidewalk or as long as people could get by, they could still be on the sidewalk. Staff answer: Yes, you can't obstruct the flow of pedestrians. You can't assault pedestrians, but you can lawful assembly, yes. • Dunn: Okay. Just a couple of comments about what some folks may— is that if we were to go forward, I would go forward cautiously with creating an adult district. I think that could yield you the opposite results that you want. I would enter that very cautiously. I— in relationship to this shop. I don't go in there. I don't look there. I don't have my kids go in there. I wouldn't recommend it; however, I am hesitant as a governing body to start wanting to get people to picket or to shun businesses. A business' success is dependent upon patrons. If people stop going there, they will stop being in business. All I can say, 281Page Council Work Session September 21, 2015 is it is unfortunate that there are businesses that I would rather not have in town that I don't have anybody else complaining about, but by my beliefs, I don't necessarily see the need for it, but nor should I be the one also trying to get people to picket there. I think the best way to have a business, if you don't agree with the business, get neighbors, friends just not to go in. I mean, but—it makes it tough when you start having government start saying that we are going to shun certain businesses because it is not what we believe and I don't believe in this one but then if you start doing it here, where does it stop at the art shop that has pictures that you don't agree with or a drinking establishment that has activities that you don't agree with. So, it is a tough balance for government being involved. I think the best way to do it is, do it with your pocketbook. Just don't go in. I am sure those people who are complaining aren't going in there, but you have to say where do we draw the line then. I would be cautious if we were to try and consider a district, though. That would be—I would not want to promote a district that would actually possibly bring in more of these types of businesses. I don't want that. That would be my comment there. Thank you. • Butler: Just a couple of comments. I would not be in favor of sending a letter to the business with everybody else's emails because I would feel that is an endorsement—it is a first amendment endorsement of the town on a specific type of speech. If you say—to give another example say to add on to what Tom said. Let's say it was a Muslim owned business instead of a Christian owned business and we had a bunch of people complain about it. I don't think we would be sending a letter to them and that's another first amendment issue. We shouldn't be in the business of endorsing or not endorsing things that are legal, as a town council. I would also suggest that picketing in many cases brings about exactly the opposite effect that you want because it brings publicity to the business and it may end up bringing more business. So, I'm not sure why if somebody wants to picket, they have the perfect right. I am not suggesting that you picket or not picket. I'm just suggesting that it is not an obvious result that you would have. The third thing is, if I am out of order, the town attorney can correct me, if she wants to, but in the past I have done some study of obscenity and stuff and no don't get any— draw any conclusions from that. I just was—had a lot of interest in the Supreme Court and back when I was younger, is when a lot of these obscenity cases came up. And we can go and talk with the General Assembly all we want, but they are not going to change the laws because frankly this business, while some people may find it offensive, it is not even close to what would be considered obscene. It is not even close. So, we can say it is offensive. We cannot like it and all that individually, but to try to move forward legally on it, I don't see that there is going to be any positive result other than negative. Thank you. 291Page Council Work Session September 21, 2015 • Mayor: I would be interested in looking into a district creation so that this kind of thing doesn't happen again in the downtown or most parts of town. But as I look at the areas of town on the zoning map that are I-1, which is where other jurisdictions have put these kinds of businesses, we have a lot of I-1. So, I guess the question would become how large an area would need to be dedicated. Could we carve out of I-1 in an obscure part of town where there are no homes or decent businesses around an area where a business like this could locate? Chris? • Dunn: While Chris is coming to the mike, or if we could have legislation that doesn't allow it all so no need for the district. Is that possible? • Mayor: That's what I heard Chris say, but I wasn't sure that is what you meant when you said we could outlaw this kind of business entirely. That was my understanding—we could not. Staff answer: I don't believe we could because it has been proved at the Supreme Court level that it is a first amendment right to partake in these things as adults so long as it is not obscene. From a zoning standpoint, I don't know if we could legally designate uses within a zoning district to a specific area. I think if you have a use that is permissible in a zoning district, it is permissible throughout the entire district unless you create a new district in and of itself in a particular area where certain uses can be that aren't in others. So, I don't think it pares the I-1 down to a specific area. • Burk: Can I ask for clarification on that before you sit down. So, we could change the zoning ordinance so that, let's just say downtown— you could not have a type of adult entertainment store downtown? Staff answer: What you would do is you would permit adult oriented businesses within a specific zoning ordinance and not the B-1. • Burk: So couldn't just say you can't have it here. We would have to say you can have it here? Staff answer: No, you would say it is permissible in the I-1 district, for instance. That would be the only place it is permissible. So, if a business came to the B-1 that qualified as an adult oriented business and we would have to define that as part of the ordinance, if it meets the test for an adult oriented business, it is not permissible in the B-1. It is permissible in the I-1, or some other district—B-3, B-4, etc. So, that is how it works. You wouldn't be able to say you can't be here, but you can be there across the street if it is in the same zoning district. • Burk: Right. I understand that part. By saying that it is not permissible in one area, you can't say it is not permissible—it still has to be allowed to be in other areas? Staff answer: If you would decide to adopt an ordinance that is specific to adult oriented businesses—in other words you are going to qualify businesses by what they sell and what they produce for the public. You don't do that now. Retail stores —we don't care what they sell. If you 301Page Council Work Session September 21, 2015 decide to do that based on an adult oriented business, then you are getting into the realm of Supreme Court designated this is what is permissible. You are going to say this use is permissible in this district. So, any of those uses that adult oriented business, are permissible anywhere in that zoning district. You can't say between First Street and Third Street is permissible if it is all I-1 around it or all B-2 around it or all B-3 around it. The way zoning works, if you permit a use in a particular zoning district, it is permissible throughout that entire district. • Dunn: Can you have an overlay? Staff answer: You could have an overlay. • Dunn: So, you could have I-1 with an adult use overlay that was one block or even one building? Staff answer: I don't know if you could restrict it like that. • Butler: If you reduce it too much and somebody sues you, you are done. • Dunn: Well, it starts to get to spot zoning. Staff answer: If you decide to go ahead and devise an ordinance to permit this, we will do things, we will follow the lead of Manassas and Harrisonburg and other municipalities. A lot of these municipalities will permit them either by right such as Manassas does in their I-1 and I-2 districts or Harrisonburg does in its B-2 district, which resembles a lot our B-3 district, but each one of those places, whether they permit it by right or by special exception, they have specific use standards that establish distances from protected uses such as church, schools, daycares, etc. Or, you know, some of these standards—we would have to devise standards typical to a special exception. Now, we have use standards for a lot of uses. Look at Article 9. There is a whole litany of use standards for uses based on the specifics of those types of uses. Things you would expect. Basic minimum standards from which to start from and then you as a Council under special exception review can use those and add more based on the conditions where it is. Even in Harrisonburg, they have that provision that it must be 1000 feet from a protected use, but they also have a waiver that allows protected uses, if they want to locate closer than 1000 feet, they can waive their protection—knowingly, they can waive it. So, we would use these ordinances to do just that, if you so choose to have us write something. Now, right now, we don't have anything that is specific to adult uses. I sort of echo what Councilman Dunn is saying—you get a lot of advertisement with this. The word is going to get out. Hey, Leesburg permits these things now. • Hammier: There is another question, if I may now ask it. What happened in Manassas and Harrisonburg before versus after that they implemented it? Did that happen? Could we find that out, please? 31 ( Page Council Work Session September 21, 2015 Staff answer: I did reach out to the folks in Harrisonburg, but they never got back to me. How it came to be that they wrote these ordinances. • Hammler: Presumably, I would think that to say that, you know, Leesburg is trying to attract these businesses would mean that it is being misconstrued because you would simply have to look within the context in which we were discussing this, but I think at least looking at the lessons learned would be important for us. • Burk: I know Manassas has a lot of them. If you drive right down through their main road. • Butler: I think Council Member Dunn brings up a good point that if we do say it is not permitted in the B-1 but it is permitted in say the I-1 or the B-4 or whatever, it is almost an implied endorsement at that point and I will tell you frankly there is a whole lot of other adult oriented businesses that would be far more offensive than this business that could come in. It is always going to be a concern. Staff answer: Since I got here in 2003, this is the only business of this ilk that I have seen come to the town. I have been zoning administrator for five years now and I have not seen anything come to the town like this. Also, bear in mind that you have the unlisted uses provision in the Zoning Ordinance, so if a business comes to town that is an unlisted business. For instance, in Manassas, they have an adult caberet, essentially a strip club. The strip club comes to Leesburg. Mr. Zoning Administrator, can I open my strip club over here on East Market Street? I would tell them well, we don't have that use listed here. Under unlisted uses, as a Zoning Administrator, I can determine whether it is use by right based on the uses around it and the character of the district. It is a use by right—can it be approved as a use by special exception or is it not permitted at all. So, I can weigh them on a case by case basis and tell them one, two or three. Yes, no or with a special exception, you can go to Council. We have that protection right now. Is it fool proof? Is it all protected? No. But, we have something and that is one thing I want you to consider. If we go front page newspaper—Leesburg now adopted adult oriented business ordinance. You want to think about that. • Butler: So, we have a red light district. Great idea. That's the risk. That's the risk. Staff answer: Especially if you do an overlay. That's essentially what you are doing. • Butler: It's a concern to go down that road. • Mayor: Chris—we have this problem now. So, how do you make a distinction between the scenario you just outlined and the situation we are dealing with now? Staff answer: The situation we are dealing with now—according to Barbara, and according to the Town Code—there is no obscenity here. You would have this store. You would have, and an example has been 321Page Council Work Session September 21, 2015 thrown out—Victoria's Secret that is in every shopping mall in America. Every kid goes with their parents. High school kids go to hang out. You know, kids that are 10, 12, 13, 14. Moms, dads drop them off. Go hang out and call me later. It is all—it is difficult, but if it is a clear use that wouldn't meet or falls out of that gray area, like the example I gave you, that is a lot easier to deal with, but if it is a retail store that does...it is a tough one and we have to weigh it on a case by case basis. If you want to adopt an ordinance, we will certainly write you the best we can come up with. • Hammier: Madam Mayor, if I understand this correctly. Juveniles are not allowed into that store. They are allowed in, they just can't peruse material at the store we are talking about on King Street? Juveniles are not allowed. So, but juveniles are allowed into Victoria's Secret so how are they different? That's a clear distinction. Notar: The store, voluntarily does not allow juveniles in really not because of the clothing. It is the merchandise that is for sale in the store. Do they have to under the law? I don't think so because it is obscene for juveniles—harmful for juveniles. We went through the statutes. I think they could allow juveniles in there. • Hammier: Wouldn't a juvenile have the right to say I have every right to be here? I am just confused. Notar: They ask. They voluntarily do not allow children—juveniles in there and they ask for ID. They told me that themselves and we have no documentation from the police that says they do not do that. So, to err on the side of caution, they require identification. • Burk: Alright. We obviously need to think about this. Notar: Let me just give you one—end with this. In a few months, we may be coming to you—we are going to look at our portion of the zoning ordinance regarding our sign regulations. A case has come down— I talked a little bit about it with you in some emails called Reed vs. the Town of Gilbert, where the Supreme Court has made distinctions about signs. Freedom of expression is getting a lot of attention from the Supreme Court and they are broadening that. They are protecting it more. So, don't think the Supreme Court is going to tighten up the obscenity—it is the opposite—not the way this Supreme Court is going. It is broadening Freedom of Expression and this is Freedom of Expression. • Mayor: Chris, because I pre-date you, actually this is the second problematic business we have had in the historic district, or proposed for the historic district. In the early 90s, a gentleman named Angel Moldato wanted to set up a Gentleman's Club in what is Balls Bluff Tavern. That was one of the reasons we began to first look at our anti- obscenity ordinance, so it has happened before. We managed to prevent him from coming in, but I am not sure we are safe and I would want to make sure if we can continue to prevent that kind of business from coming in, we do so. I think Barbara has thoroughly analyzed the 331Page Council Work Session September 21, 2015 law and found we have done everything we can with our ordinances, but we did have another event before, but it has been a long time between the two. • Fox: Madam Mayor, may I just have one more comment, if I may. I regards to picketing, that we were discussing earlier. That was a question that was posed to me by a constituent. I wanted to know what would happen if that happened, what would the town need to do? I wasn't sanctioning it. So, I just wanted to make that distinction. 2. Additions to Future Council Meetings Council Member Dunn: Had no additions. Council Member Butler: I have two things. One is I had a couple of constituents come and talk to me about, you know, the heroin problem in Loudoun County. So, they were wondering what is our police force doing to try to ensure this not become a problem. So, I was wondering if the police chief could just send us a memo. I know [inaudible] in the schools and we are not responsible for the schools directly, but we do have resource officers in the schools. What are we trying to do to make sure this doesn't become a worse problem and hopefully becomes a less of a one because heroin is not a good thing. Among other things, I just wanted to mention that when I was downtown on First Friday, I always stop in a bunch of businesses, as I am sure all of you do. This time, when I walked in—every single—there were six businesses that I remember and all six of them, one of the first issues they mentioned even before I hardly had a chance to open my mouth, they are saying we are losing customers because of the parking rates. Just wanted to bring this up as a memo. We are going to talk about this in another month at our next work session and I would encourage our Council Members to go talk to some businesses downtown and see if they get the same flavor of response. Vice Mayor Burk: I have got a couple of things. One, I hope that Council will allow me to bring up tomorrow an appointment to the Commission on Public Art— Cameron Orndorff. I think he is about 15 years old. He is in middle school. Mayor: He is 16. Burk: I guess he is not in middle school then. He must be in high school. He would like to be on the Commission on Public Art. He just got his material in to Lee Ann today. So, if we could put it on for the agenda tomorrow, I would really appreciate it. He is really excited and interested in participating. I would like to encourage him to do so as a young man involved in the process. There was consensus to add this to the agenda for September 22, 2015. I have a couple of constituents who would like Council to look at changing the ordinance for temporary storage. There is a couple of areas that have issues with those POD things that people put in their driveways or in their yard. One particular 341 Page Council Work Session September 21, 2015 neighborhood, it has been almost a year. We have no way of determining what is temporary, so they asked if we would look at that for future consideration. I think it is a legitimate concern. There has been more than one complaint that has come forward on this. If you are thinking your own neighborhood, if you have someone— you know, what is a reasonable time to be able to keep a temporary pod in your neighborhood? So I would like that at some point to be on the discussion. It is not immediate, but I would like it to go forward as a discussion in the future. There was consensus to add this to a future work session for discussion. Fox: Is that just on private property? I have seen them also on public access roads, even in neighborhoods. Burk: It doesn't have to be limited. Mama Lucci's is celebrating their 20th anniversary in business in the town. It would be nice to recognize them. I will leave that up to you to decide if you want to do that. There is another issue that has come forward to me in regard to AirBnB. If you don't know what that is, it is an internet service to allow you to rent out a room in your house or even your house. We did have someone complain about it. Since then, we have gotten a couple of more. We don't have very many in the town, but it is a very popular service. There are people within neighborhoods that feel it would be very disruptive to have a short term rental situation in their neighborhoods when they don't know who is going in there, it disrupts the neighborhood. So, they asked that we have a discussion in regard to that. Dunn: We already have regulations for that. You can't have anyone at your house unless they are related to you. Burk: Can we get that in a memo. Because we most certainly have a number of people who are doing it now. Right there, I think it is confusing. Hammier: So, a rental basement apartment? Notar: I don't think that's true and we did look briefly into AirBnB, but it is a little complicated. If we could, I think an informational memo to begin with and then maybe if you wanted to discuss it further. Burk: It is a big deal in some other locations. A lot of people do it, especially in big cities. But the small cities are being—it is beginning to be an attraction for small cities and I know that there are number of them that have banned them altogether— don't allow it. So, we don't have an issue with that. I think you said there are five or six people that do it now. It could become an issue further on so perhaps we should look. Notar: Localities are looking into AirBnB and the regulations surrounding them because as the Vice Mayor said, there are certain residents don't like the turnover in rental properties. 351 Page Council Work Session September 21, 2015 Burk: How long can a—even on public streets —how long can a car stay on a public street without being moved. Notar: We prohibit commercial vehicles, but residential—but what's the opposite—a passenger car can stay on the street. Dunn: As long as it is registered. It won't get ticketed. Martinez: Again, I think we need [inaudible] because I have gotten a ticket for my car not moving for weeks. Burk: Sometimes it has happened. Sometimes it hasn't. I've gotten different information so that's why I am just trying to get a clarification so I can go back to these people and say this is how it is done. Staff will provide a unified staff position memo. Council Member Hammier: I would like a memo please regarding the CIF analysis. If there is a motion proposed hypothetically to request staff actually do that analysis, how would they reprioritize and what would have to fall off and/or when could they get to it for staff to actually do that analysis. I would appreciate that memo. Just to reiterate what was mentioned earlier, if I may get support. I guess I should ask for support for that first. Staff will provide a memo. Council Member Hammier: If I need to bring something under new business, what and how we could take action on influencing the PMF number that 37 1/2 inch rainfall number dealing with the high risk dams and also the question regarding if we do a special tax district, what would we anticipate VDOTs percentage of a special tax district to be relative to the tax to pay for the high dam to be improved at Exeter. I would appreciate that research. Mayor: I guess the question is, is any of that dam structure in VDOT's right of way. I don't know if it is. Adjacent to their right of way, they are not on the hook for it all. Hammier: Even in a special tax district? I guess that is my question because it would seem that in a special tax district by definition, anybody impacted as a stakeholder contributes to the cost and maybe I am misunderstanding. Mayor: I suspect we would not legally be permitted to tax a state entity. Hammier: So, we will stick just to the analysis on how to influence the actual PMF number, please. If it would be possible to put the National League of Cities on consent agenda? 361Page Council Work Session September 21, 2015 There was not consensus to move this to consent. Hammier: I'll send another memo then. Just very quickly with Kim Winn now being on the Board from VML, there is very specific new opportunities for Leesburg to be more directly involved given the significant number of Federal issues not the least of which some of these TMDL and other things coming down. There are opportunities for us to get much more involved, so I will send out that additional information before tomorrow. Fox: Just one item. I wasn't going to do it until I heard Kelly's laundry list, so I thought I'd better get it on here somehow. I made a request for a memo about a month ago regarding the information for telecommunications. I don't know if anybody had—it was tab 11 last time. I don't know if anybody had an opportunity to look at that, but I wanted to start a conversation about that. I was hoping to get that on a future work session. There was consensus to add this to a future work session. Dunn: At our last meeting, I had suggested folks read the memo about the H-2 and looking at it again myself, I am not sure if it was actually what I had actually requested initially. I thought that I had requested a memo asking staff to tell us how long it would take them to remove the H-2. That memo looked like it was more about the timeline that we are going to take to get to the H-2 guideline rewrites. I had no desire to see that at all. What I was looking for was what would it take for us to get the H-2 off the books because that is what I was looking for as far as a memo so the whole issue is we just don't have the staff time so if Susan could look at that memo again. I was just looking at okay how long will it take us to get H-2 off the books. What is involved with staff time on that. Hammier: Do we need a memo requesting the impact for that special use district in Harrisonburg and Manassas or was that accepted as something that staff is planning to do and distribute to us? Mayor: They have not been directed by Council. Hammier: I would appreciate a memo on that to determine whether to bring that back for something so that there is no unintended consequences. Martinez: I really am so tired of memos and all this stuff. I mean the staff has their job to do and I see this stuff in emails. I see this stuff coming over on Council. Can't we just leave them alone for one night? Mayor: This could be a more complicated memo, but Kaj and Barbara, what are your thoughts on that? 371Page Council Work Session September 21, 2015 Butler: What information are we looking for other than what they have already presented? Mayor: Good question. Katie, you were not happy with what they presented? Hammler: Tom raised a good point, which was we don't want to be in a position to attract more businesses, so there should be some reference kind of before and after what happened relative to the number of types of businesses before a special use district was created versus after. Unintended consequences. Dunn: I don't need a memo on that. Mayor: My suspicion is that will actually take some time to track down because I don't even know if Manassas or Harrisonburg has kept data on it so I guess we could send an email to the City Managers of both cities and say do you have that data and if they don't, then there is no point in us seeking it. But maybe a quick email, would that be possible? Katie, you and I could do it if no one else wants to do it. Hammier: I will send an email tomorrow. Thank you for your support. 3. Adjournment On a motion by Council Member Martinez, seconded by Council Member Butler, the flee 'ngs agou ed at 10:17 p.m. ‘4Vt V ' Clerk of Cou 11) 2015 tcwsmin0921 381Page