HomeMy Public PortalAbout2009.03.16 BAR Meeting MinutesDEPARTMENT OF PLANNING AND ZONING
Town Hall, 25 West Market Street, Leesburg, VA 20176
TEL 703-771-2765 FAX 703-771-2776 www.ieesburgva.gov
MINUTES OF THE BOARD OF' ARCHITECTURAL REVIEW
Monday, March 16, 2009
25 'Nest Market Street
Council Cliaoilier
MEMBERS PRESENT:
Teresa Minchew (Chair), Dieter Meyer (Vice -Chair), Marilyn Bos, Tracy
Coffing, Richard Koochagian, Bob Miller, Jim Sisley, Doris Kidder,
Councilmember Tom Dunn
MEMBERS ABSENT: none
STAFF: Annie McDonald, Wade Burkholder, Barbara Notar, Wendy Walker
Call to Order and Roll CaII
Ms. Minchew called the meeting to order at 7:03pm, noted attendance and determined that a quorum was
present.
Approval of Minutes
Ms. Bos moved to approve the February 18, 2009 minutes; Ms. Coifing seconded the motion, and it
passed 6-1 (Mr. Meyer abstained).
BAR Member Disclosure
Mr, Meyer disclosed regarding BAR case TLHP-2009-0008 (10 South King Street) that he serves on the
Downtown Improvement Association (DIA) Board with Mr. Zacchariasse of Waterford Development and
had talked in general about the project but no specifics.
Discussion Agenda
1. TLHP-2009-01702, 222 South King Street, Applicant: Christopher Todd (Waterford
Development), re: new construction — Old and Historic District (H-1 Overlay)
Ms. McDonald summarized the application's BAR approval of the parking garage concept,
demolition, new construction concept, 214 King Street relocation, conditional approval of the 222
and 224 King Street details, as well as the Applicant's revisions per the BAR conditions and
comments from the March 9th work session. Staff recommended approval of the revisions as
amended with the lighting deferred until the lighting plan, and the sidewalk railings deferred until
the landscape plan. The Applicant, Christopher Todd, lauded the thorough staff explanation of
the past week's work and helpful BAR feedback from the previous week's special meeting.
Mr. Meyer queried if the proposed gray colour was the warm tone in the colour rendering or the
cool tone sample to which the Applicant explained that the plotter was not totally accurate. The
paint chip being the proposed colour which is similar to the Chantilly office building photo as
displayed, emphasizing that the cooler tone lets the penthouse recede more as well. Staff noted
the red brick for the proposed building is a greater contrast than in the Chantilly building example.
Ms. Kidder referenced the March 9th work session straw vote regarding the brick screen wall,
adding that contemporary buildings have metal screening with hip roofs to hide the equipment on
BAR Minutes — Marc!, 16, 2009
per the guidelines but that this sign was grandfathered though it is still non -conforming. Ms.
Minchew clarified the Board's approval is based upon the design's compatibility.
Mr. Dunn broached whether the plexiglas should be removed if the vinyl material is the issue, or if
the colour scheme should match the historic district, and that there already exists contradictory
examples in the H-1 and H-2 areas. Mr. Meyer identified that the colours and plexiglas are not
appropriate in the historic district, but that the property is just over the line in the H-2 Overlay so
though it is not conflicting per se, the concept is to accomplish blending between the overlays and
encourage more historic district style signs.
Ms. Bos indicated the corporate colours could be subdued as was requested of nearby Midas,
and that the sign does not impact Dodona Manor since the road turns near the location. Ms.
Coffing agreed that the corporate colours should be modified or toned down, as well as use of
another material than plexiglas. Mr. Meyer concurred with the staff report, and that the bright
yellow colour is not compatible with the building and probably not the bright green either, but that
if the colours were modified it could be compliant with the compatibility guideline. Additionally,
Mr. Meyer also agreed with the staff assessment about the materials and overall composition as
the design was very busy. Mr. Koochagian agreed in most part with Mr. Meyer and the staff
assessment, and Mr. Miller also concurred with the staff assessment. Mr. Sisley indicated the
design guidelines lead him to concur with staff though there is the issue of permitting a business
to express their corporate identity.
Ms. Minchew acknowledged not thwarting a business from being successful, but that tweaking
the corporate colours had been done previously and easily to meet guidelines. Ms. Minchew
further indicated agreeing with the staff assessment, and that though the fonts are busy, the
colour scheme is the main non-compliance issue, requesting to see a redesign. The Applicant
asked if the yellow background was the primary issue to which Ms. Minchew responded the
concern is the yellow as well as the overall composition and that white may better tone down the
appearance. The Applicant indicated the sign is too close to the road to get much attention to
which Ms. Minchew asked if a sign plan for the whole structure had been considered. The
Applicant responded no, but that the sign appearance could be toned down yet still retain their
corporate identity. Queried by the Applicant and Ms. Minchew, Mr. Burkholder responded that
the use of plexiglas was not required so other materials could also be considered. Ms. Bos
advised that the corporate headquarters may have alternatives as businesses often have to
tweak designs based on historic district standards.
Mr. Dunn questioned if the Applicant sought to paint the moulding and border around the building
a colour other than gray to which the Applicant indicated the trim was repainted more as an
update rather than a colour change. Reminding that the structure was in the H-2 District, Mr.
Dunn noted if green was considered that various greens are used in the H-2 so there is flexibility.
Mr. Meyer moved to defer BAR case TLHP-2009-0013 until the next regularly scheduled meeting
(April 201h); Ms. Bos seconded the motion and it passed unanimously 7-0.
Administrative Agenda
Election of Officers: Noting the election delay from the January target date, Ms. McDonald recommended
the Board members nominate officers for the chair and vice -chair positions. Ms. Coffing moved to keep
Ms. Minchew as the BAR Chair and Mr. Meyer as the Vice -Chair; Mr. Sisley seconded the motion and it
passed unanimously 7-0 with both the Chair and Vice -Chair agreeing to another term. Ms. Minchew
further added about refining discrepancies between the current bylaws, denoting a January election and
the Town Council mandate for July elections.
Items referred to BAR by Town Council: Ms. McDonald shared that the Town Council was addressing the
existing arbitrary and capricious appeals process, and that for most other Virginia municipalities it is
based upon an arbitrary and capricious nature of the BAR decision (unequal or inequitable application of
the design guidelines), or as contrary to law (acting in open violation of the ordinance). Last summer, the
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BAR Minutes — March 16, 2009
Council considered opening the appeals process for full review regarding arbitrary and capricious,
contrary to the law, or a third process which evaluates a project on its own merits and replacing the BAR
decision with Town Council's own judgment. Not many Virginia municipalities follow the third process
though Portsmouth has a new appeals process with an intermediary review committee comprised of two
people (the Town Attorney and Director of Planning or their designees) to determine whether an appeal
has merit and if it should proceed to the City of Portsmouth for review. An appeal of any Town Council
decision to the Circuit Court is based upon the arbitrary and capricious or contrary to the law language as
per the code, therefore the standard to which the Circuit Court adheres is what Town Council established
for the BAR in applying the guidelines and consistency. Ms Minchew added that it seems a mistake if the
Town Council chooses to change the process for the BAR as the Council will still be held to that very
strict standard.
Mr. Sisley asked Ms. Notar, Deputy Town Attorney, if liability is increased or altered for the Town if review
rules are changed by a second board to which Ms. Notar indicated the BAR needs to decide if all
applicants cleave to a de novo appeal process which is a 'do over' of sorts, allowing applicants to appeal
to Town Council for something other than an arbitrary and capricious claim which is difficult to overcome
(i.e., determine the BAR made an outrageous decision). Ms. McDonald added that most jurisdictions in
Virginia do not have the de novo appeal process since it leaves the BAR decision as irrelevant, and that it
is unclear about Portsmouth's appeal process as the legal code is not written as de novo either, but that
the review committee determines whether Council hears the case. Ms. Minchew cited that last summer
the Board did not think this was a valid program change, and Mr. Sisley acknowledged that if the de novo
appeal is enacted then there is no need for the BAR to attend meetings as the review process should just
be done by the Town Council.
Mr. Sisley requested further clarification from Ms. Notar regarding the liability of changing the appeal
process in protecting the Town Council's time to conduct other business not under review of the Board to
which Ms. Notar agreed it was not efficacious. Mr. Meyer indicated there would probably not be more
appeals, but rather only the controversial cases that are split vote and have a large public meeting
attendance. Ms. Minchew noted that there is then no incentive for the applicant to work with the BAR
since they can easily and quickly appeal to the Town Council to which Mr. Meyer agreed as an applicant
may leverage political support. Ms. McDonald added that BAR members receive some capacity of
training and a degree of insight by interacting with staff of which Council does not always benefit or have
access to that level of training and procedural knowledge. Ms, Minchew further cited that the BAR
members were specifically valued, and chosen for their knowledge and ability to make decisions for the
Town Council. Additionally, though the Virginia Municipal League is wonderful and several BAR
members attended the recent conference, Ms. Minchew cautioned that their changes proposed for
Fredericksburg are for communities starting review programs. Leesburg has a sophisticated approach to
the BAR and historic district review, as one of the first municipalities to implement such a program and
having already worked out a few of the kinks, so it is important to remember this aspect when speaking to
Council for the program ideas are not targeted toward Leesburg's BAR. Rather than completely changing
the program, any parts that are not working (e.g., disagreement with BAR decisions that are guidelines
compliant) can be identified, and revised by Council with a public hearing and by amending the code in
the Zoning Ordinance. Mr. Sisley indicated for the record that he was not in favor of establishing a de
novo process to which the other Board members agreed it was not a good idea.
Ms. McDonald reminded that the expiration of BAR approvals is currently good for two years as it may
take more than one year to get site plan approvals, and though two years had not been a hindrance, the
Town Council queried if the expiration should be expanded; or if two years is sufficient, then should the
expiration be from the date of BAR approval or from the date that all final approvals are received from the
Town. Noting it should not include obtaining the Loudoun County building permit since the Town cannot
manage that timeframe, and applicants can wait and hold Town approvals. Additionally, complications
prevail with rolling start dates as there are varying dates for similar projects based on building use (i.e.,
commercial versus residential), and whether the project requires a zoning permit, BAR review or
administrative approval, as well as there being no demonstrated need for an expanded expiration.
Mr. Meyer agreed though unnecessary, but to keep the process simple, to expand to a three-year
expiration to aid the occasional project that is bogged down via the overall Town approval process,
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BAR 'Minks — March 16, 2009
instead of a rolling clock approval. Previously, there was a 12 -month approval lifecycle and it was
extended to 24 months as a result of one approval that expired, but then a building was demolished and
the lot is still vacant as a result of market conditions. Thus, early demolition of viable buildings should be
abated, even if they are not the best buildings as it is better than a hole in the ground which is a serious
blight to the community. Ms. Minchew responded that the BAR sometimes perceives issues differently
than the Town Council's concerns, but the Town Attorney opined a BAR approval condition for demolition
can be tied to the County building permit, though 1# must be included in the approval motion until it is
institutionalized in a different way. Mr. Meyer further expounded that in down times developers may
obtain a building permit and tear down a structure but not rebuild necessarily so the permit may not be
the best thing to link approval to since demolished buildings show very poorly on the Town.
Mr. Sisley questioned if lengthening the approval to three years creates a barrier to demolition to which
Mr. Meyer indicated it is two distinct issues, noting his concern regarding the previous BAR approval that
expired and resulted in demolition, and that a different BAR membership could have voted differently
upon case resubmission so hopefully a longer period would allay such an issue. Mr. Sisley remarked that
the real estate business also suffers when people pull building permits and not build a building, but is not
certain that a three-year BAR approval applicability timeline can preclude such scenarios, and that it is in
the Town's interest to be expeditious with projects, encouraging quick action before market conditions
change. Ms. Minchew posed that other jurisdictions have an administratively -granted appeal option for a
six-month extension to which Mr. Sisley added the approval can be conditioned so that it cannot be
unreasonably withheld. Ms. McDonald further offered the extension may be for one year and conditioned
on the project remaining unchanged from the initial approval or it shall return to the BAR for a new review.
Ms. Minchew indicated preference for a six-month extension, not longer, and Mr. Koochagian agreed with
Mr. Sisley that the Town make the process faster to enable applicants to build their projects. Mr. Meyer
stated projects move forward if they are economically viable so a three-year period will help in economic
downturns.
Mr. Sisley remarked that the Board was addressing these areas of process because of the current
economic downturn, and that banks do not fund construction projects until 50 percent or greater of
preleasing is done as per the loan's approval conditions which doesn't happen in downturns, therefore the
building cannot commence. Though positive financial trends have fortunately and mostly been the
experience, the danger in sustaining a longer approval is that an entrepreneurial owner of an improved
property tries to solicit and advance the sale of the property based on the added value as enhanced by a
BAR approval. That is, the project was not intended to progress until the last days of the approval as the
applicant leverages the gained BAR approval value and awaits buyers, or until forced by an expiring
approval to obtain permits for a project to advance which is a detriment to the community.
Mr. Meyer acknowledged the good argument against the three-year approval and questioned if an
extension should be six months or one year to which Mr. Sisley indicated delineating solid reason to craft
appropriate and accurate conditions as well as rely on available legal resources. Ms. Minchew added
that materials, designs and review boards change which may be another reason to not have a longer
approval period. Mr. Meyer illustrated the appropriateness and need for at least the two-year timeframe
as it would be unduly burdensome to obtain re -approvals to which Mr. Sisley agreed, and Ms. Minchew
further added that any longer would give other departments free reign to not expedite projects.
Joint Meeting with the Planning Commission: Ms. McDonald indicated the March 19th Planning
Commission meeting would not discuss BAR issues until after 7:30pm and that the discussion results
were scheduled for the Town Council April 14th meeting agenda. The Board should come to the meeting
with a unified opinion regarding discussion points — appeals of BAR decisions to the Town Council,
expiration timeframe for BAR approvals, and timing of the BAR review of rezoning and special exception
applications. Currently there is a mandated BAR review following the legislative application which makes
it more difficult for applicants as noted by major developers and land use attorneys so Town Council
requested input about a more appropriate solution. Staff recommendation is for an integral approach with
the BAR serving as a referral agency, issuing a recommendation to the Planning Commission — not
approving a project, but recommending it be approved with conditions as necessary for a more integral,
comprehensive approach.
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Town Council is interested in more flexibility with an applicant able to use one approach or the other
which has its pros and cons. An applicant can interpret a Town Council approval to mean the site plan is
approved to which the applicant can then appeal a BAR denial or modification recommendation to the
Council, or go to the Council for an amendment to the concept plan which requires Planning Commission
input.
The BAR previously used the integral approach for almost two years before the legislative approval first
process was restored, though it had been successful (e.g., Commerce Bank project and Waterford's King
Street project concept approval for the parking garage), albeit for the exception of the Georgetown Park
project which was a quagmire not because of how it was processed, but rather due to the final BAR vote
to deny which the Town Attorney determined it was not appealable since it was not a final action.
Ms. Minchew further expounded upon the Georgetown Park kerfuffle and that the end result may not
have been any different if it had been a recommendation, in that the applicant had gone to Town Council
for an approval and the case returned to the BAR with a slightly different proposal. Ms. Minchew queried
if there were any downsides of the recommendation approach versus a legislative vote to which Ms.
McDonald defined a non -BAR disadvantage in the possible effect of BAR member changes and opinions
in the lifecycle of a project. Ms. Minchew assented, in safeguarding applicants, it would be harder to
counter a BAR approval versus a previous recommendation so it should be made clear as a raised flag
issue, as well as determining factors for the procedural process choice of going to the BAR or Town
Council first. Ms. McDonald shared about the various approaches of other municipalities, and staff
recommendation for applicants to come to the BAR first for recommendations as a referral agency to
which Ms. Minchew indicated in the past the BAR had given non -binding feedback early on, though it was
very general and didn't eliminate all problems. Ms. McDonald stated the continued need for a public
hearing, but now making an educated and informed decision to work out the details for an integral
approach that makes sense, and is a fair and equal process for all applicants.
Mr. Meyer indicated strongly concurring with the staff recommendation for an integral approach because
providing early BAR assessment can help big projects move along before all elemental details are
identified. Mr. Sisley expressed concern about keeping the process fair to all applicants in using several
approaches to which Ms. McDonald echoed the need to make the process equal for alt applicants. A
potential glitch which currently exists is that an applicant may presume legislative action on a concept
plan will also mean BAR approval so the dispute is if the applicant comes to the BAR at the front of the
project or later. Mr. Sisley surmised that several Board members viewed it is as positive for the applicant,
especially on large projects, to preliminarily review size, scale and mass to which Ms. Minchew added the
importance of also seeing the site plan early on.
Mr. Koochagian requested if a preliminary review process would be the same regarding regular public
hearings, signs posted and staff reports to which Ms. McDonald confirmed it would not be handled very
differently from any other application as it answers the question of openness versus being unnoticed as
presentation format only. Ms. Minchew questioned whether an applicant would rather have an actual in
concept approval versus just a recommendation.
Mr. Dunn stated that currently the BAR is not an advisory board to Council to which Ms. Minchew
responded that the BAR is an advisory board in certain capacities as per the legislative language, and Mr.
Dunn added that the BAR has a distinct appeals process to Council for applicants. Mr. Dunn further
indicated his approval of the current BAR program continuing with one slight change of a less strict
appeals process, and that he likes that the BAR can enforce guidelines and make a consideration after
hearing from two other bodies — the legal planning body of the Planning Commission as well as the
political will (desires of the community) from the Town Council.
Ms. Minchew expressed concern for the applicants regarding a process that lets them know where they
stand and having a mechanism for casual input. Mr. Meyer indicated repeatedly hearing as such from
applicants and developers the desire to come to the BAR early for direction as the guidelines are open to
interpretation. Mr. Dunn added that applicants generally want a yes, but the details may have a lot of
work so what applicants want and what they end up with can be different.
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Ms. Minchew stated that if the current process remains, then it is very important to add a mechanism to
hear applicants early in a casual way with pre -filing, a minimalist staff report, and notice; otherwise what
the applicants have said is ignored. Ms. McDonald confirmed that previously applicants could present an
early concept to the BAR with no formal application and that the old process worked fine. Ms. Minchew
added the process worked until the Georgetown Park application was denied and the applicant tried to
appeal the decision. Mr. Meyer expounded that the underground parking garage required a special
exception so it was a unique case that the BAR approved in concept, but it still needed a special
exception, and early referral for the likes of the building atop the parking garage is recommended to keep
the project progressing. Ms. Minchew supported the idea and indicated if applicants have a choice, that it
is made clear if they want to present to the BAR for early concept approval, or for referral only before
going to Town Council. The Board surmised there was a general consensus amongst the members
about the approach to address at the Planning Commission meeting on March 19tH
Bylaws Committee update: Ms McDonald referenced Friday's March 20th scheduled meeting to address
the outdated bylaws and what should be included, indicating she would provide the existing bylaws to the
two members in advance of the meeting and highlighting their expertise — Mr. Sisley's nonprofit
experience with bylaws, and Mr. Koochagian's interest in procedures and rules of procedures.
Joint Architectural Review Board (JARS) update: Ms. McDonald updated about the coordination of the
2009 joint board nominations with the County, Middleburg and Purcellvilie, indicating waiting for final
appointment of the other joint board members before scheduling a kickoff meeting where categories
would be further identified, and suggesting the Board prepare to nominate worthy projects in the April 20th
BAR meeting. Ms. Bos noted she sent a message about nominating projects that exceeded guidelines,
timeframe considerations, and categories such as signs, residential, commercial, new construction or
additions. Mr. Meyer proposed using a high standard, nominating projects that are out of the ordinary, to
which Ms. Bos agreed.
H-2 Corridor Committee update: Ms. McDonald mentioned the upcoming Tuesday, March 17th meeting to
continue discussion of the current existing pros and cons as addressed in the meeting two weeks
previous.
Old and Historic District Design Guidelines update: Ms. McDonald informed the Board that the updated
guidelines are available, albeit one boundary correction still in the neighborhood map, to which Mr. Sisley
requested copies be environmentally sound by printing the document two-sided. Ms. Minchew expressed
hesitation of disbursing the document until the error was rectified to which Ms. McDonald agreed since
the guidelines is an official document adopted by the Town Council. Ms. McDonald further indicated
proposed ordinance revisions would be approved in April, and Mr. Burkholder would be the staff person
steering the ordinance through the Planning Commission,
Ms. Minchew questioned when the new guidelines rule to which Ms. McDonald announced the Town
Attorney stated the guidelines were adopted but not formally incorporated into the Zoning Ordinance so
an applicant can use either the previous version or the newly approved guidelines for the evaluating
process. Furthermore, once amended zoning ordinances are approved by Town Council, then the new
guidelines rule. Ms. Minchew articulated the evening's approval of Waterford was per the old guidelines
because the case was filed prior to new guidelines adoption. Mr. Meyer considered a possibly unfounded
concern for an applicant that files a case in the period between the approval and adoption to which Ms.
McDonald responded that now is such that time, therefore applicants are even more encouraged to work
with preservation and zoning staff to meet required guidelines.
Mr. Sisley asked if there was a case where the new guidelines are more restrictive than the previous
guidelines to which Ms. McDonald responded no. Mr. Sisley then intimated that even if there were a case
of a new guideline being more restrictive, that legal precedence and courtesy must rule for cases mostly
complete to continue on the original path instead of requiring compliance with a new guideline to which
Ms. Notar agreed. Ms. McDonald expounded that design guidelines are infrequently and substantially
changed only every 10-20 years so it is not a major concern, and that once the ordinances pass,
applicants will be directed to the new guidelines solely.
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BAR Minutes — March 16, 2009
Staff approvals (for information only): TLHP-2009-0011, 2 West Market Street, re: new business signage.
Training Opportunities (additional): Ms. Minchew queried about training opportunities to which Ms.
McDonald indicated she was unaware of anything in the near future that was relevant.
Adjournment: The meeting adjourned at 9:25pm.
NEXT REGULAR MEETING:
Monday, April 20, 2009 at 7pm
Town Hall Council Chamber
25 West Market Street
Leesburg, VA
/1(ILC'.i (A)
Teresa Minchew, Chair
Wendy Walker, Clkrk of the BAR
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