Council discussion of SEESUU appeal of BAR denial of partial demolition of old Murphy Theater building raises by-right demo concerns

Some Front Royal Town Council members expressed concern and even alarm about a condition in Town Codes that seems to permit a property owner in the Downtown Historic Business District to proceed with a desired structural demolition denied by the Town after a certain period of time in the wake of a failed sale. The appeal of SEESUU LLC and owner Gary Wayland to council of the Town Board of Architectural Review’s (BAR’s) recent denial of a demolition application came before council on January 9, prior to a public hearing and council vote to back the BAR decision or not, locked into council’s January 23 meeting agenda by related code time frames.

After hearing a summary of the BAR’s public hearing and denial of the application by Planning Director Lauren Kopishke, Amber Morris raised the by-right issue. “I guess there’s a rumor that if this is denied by council, potentially a year from now the property owner doesn’t have to have this re-heard and they can do what they want by right,” Morris queried Kopishke.

Planning Director Lauren Kopishke, at podium, summarizes the BAR Public Hearing and rejection of 131 E. Main St. partial demolition application of SEESUU LLC.

“So, Chapter 175-Section 93, ‘Building Demolition and Relocation in the Historic District’ section of our zoning ordinance basically states that after a year if the applicant … did not receive an offer to purchase it that ‘the owner of a historical landmark, building or structure shall as a matter of right be entitled to raze or demolish such building or structure provided that: 1/ He has applied to the Town Council for such right’,” Kopishke began, reading from the referenced zoning code.

At that point Morris reacted to what she was hearing. “So, the applicant could list it for one billion dollars but if somebody makes a $200,000 offer, it’s not qualified to do what they want by-right?” she asked, to which Town Attorney George Sonnett replied, noting, “There’s a sliding scale in the ordinance as to what the minimum price is.”

What the Town Code says

Heading toward that sliding scale the referenced code continues of conditions of an attempted sale that: “2. The owner has, for the period of time set forth in the time schedule hereinafter contained, and at a price reasonably related to its fair market value, made a bona fide offer to sell such building or structure and the land pertaining thereto to any person, firm, corporation, government or agency thereof or political subdivision or agency thereof which gives reasonable assurance that it is willing to preserve and restore the building or structure and the land pertaining thereto.”

The referenced sliding scale on time frames and sale prices is contained in the 3rd condition stating: “No offer to sell shall be made more than one (1) year after the final decision of the BAR, but thereafter the owner may renew his request to the BAR to approve the razing or demolition of the historic landmark, building or structure. The time schedule for offers to sell shall be as follows:

• “Offering Price Less than $25,000.00 – Minimum Offer to Sell period 3 months;
• “Offering Price $25,000 to 39,999.99 – Minimum Offer to Sell period 4 months;
• “Offering Price $40,000 to $54,999.99 – Minimum Offer to Sell Period 5 months;
• “Offering Price $55,000 to $74,999.99 – Minimum Offer to Sell Period 6 months;
• “Offering Price $75,000 to $89,999.99 – Minimum Offer to Sell Period 7 months;
• “Offering Price $90,000 or more – Minimum Offer to Sell Period 12 months.”

These pricing and time frames are followed by condition 4, stating: “For the purpose of this Article, a bona fide offer to sell shall be defined as a selling price not greater than ten percent (10%) more than the fair market value appraisal of a certified land appraiser employing appropriate, recognized appraisal criteria for the area in question. The Town shall retain the right to contest the bona fide nature of the offer as follows: the reasonable relationship of the offering price to the fair market value of the historic landmark, building or structure, by filing injunctive proceedings in the Warren County Circuit Court, whenever the Town obtains an appraisal of the property in question by a certified land appraiser at a value at least ten percent (10%) below the offering price asked by the owner, regardless of any conflicting appraisal obtained by the property owner.”

The four-sectioned historic structure dating from the 1879 Methodist Church (darker brick 2nd section adjacent to circa 1908 commercial section facing E. Main St.) to the rear, circa 1940s-’50s apartment addition. The two lighter bricked sections, including the partially towering terra cotta section, circa 1920s, are proposed for demolition by owner.

Did council feel buoyed by these conditions, if in fact, they had, had a chance to read them in detail prior to the January 9th work session?

“My next question is what is the process for – is this like a good faith? If this is listed for sale by owner, who’s to know if there’s offers that are rejected or denied?” Morris continued her questions on oversight and accountability. Sonnett replied that he believed it was “all spelled out” in the above code section conditions unread aloud during the work session.

Morris noted the level of public interest in this particular proposal, due in large part to the redevelopment plan to create 60 “dwelling units” too small to be defined as apartments by Town Code following the proposed demolition and rebuild. After noting that Town planning staff had explained at the BAR public hearing that only the demolition rejection was at issue, initially before the BAR and now council, Morris wondered at the logic behind that isolated perspective.

“And while I understand that, that sounds logical, it’s not. Because after it’s demolished what happens next?” Morris asked rhetorically, wondering if previous councils had left her and her colleagues adequate code protections to prevent by-right demolitions from occurring against the town’s elected and appointed officials perceptions of the best interests of the community.

One primary concern expressed by the Board of Architectural Review prior to its denial of the SEESUU demolition was the absence of an engineering report on the structural integrity of the portions of the building earmarked for demolition and the applicant’s unwillingness to provide one prior to a decision. As reported in Royal Examiner’s story on the BAR denial of the demolition application (Board of Architectural Review denies partial demolition application for Murphy Theater building) BAR Chairman Collin Waters told applicant Gary Wayland this of the need for an engineering report on the proposed to-be-demolished sections: “I think the point we’re missing here is that the terra cotta section (Murphy theater and stage areas) of the building has its own significance.

Applicant Gary Wayland, at podium, makes his case as BAR listens at Dec. 13 public hearing, including Chairman Collin Waters, head of table facing Wayland.

“I think we as a review board, it’s our duty to make sure that we’ve exhausted all efforts before we justify demolition of a historically significant building in this town. That’s why I want to know more about the engineers’ report, any kind of cost analysis between restoration versus demolition,” Waters explained. The applicant essentially replied he would not spend additional money for such a report without assurances his endgame would be approved.

“I’ll tell you what, it’ll be standing for the next month or so. I don’t know how long – and I’m not going to take my money and put it in to say, ‘Oh gosh, when is this thing going to fall down.’ I’m not going to do it till I know where I’m going,” Wayland told the BAR chairman and his colleagues. Duane Vaughan, who cast the only dissenting vote on the denial, explained to Royal Examiner that his vote was made to give the applicant a chance to reconsider his refusal to provide an engineer’s report, and was not an endorsement of demolition without the requested  structural integrity report on the targeted sections of the building.

BAR and staff at terra cotta theater/stage section of building during exterior site visit to 131 E. Main St. several days prior to the public hearing on demolition application. In the absence of an engineer’s structural integrity report on the sections proposed for demolition, the application was denied, leading to the applicant appeal to town council.

At issue on January 23rd at public hearing will be how the applicants’ stance plays before council – we know how it played to the BAR and 13 member of the public who appeared other than the applicant and his agent, all 13 of whom urged denial or extreme caution in consideration of approval. It will also be interesting to see how follow-up readings of the relevant Town Code Sections on attempted sales and eventual by-right demolitions if all cited conditions are met, is interpreted by council and the Town legal staff as to how things might be revisited a year down the road were council to uphold the BAR denial of the demolition permit.

Other business

In other work session business council discussed:  two Short-Term Rental requests on the table, one at 309 East Prospect Street, the other at 302 Blue Ridge Avenue;

Amended Proffers involving number of units and access in the “Swan Estates” HEPTAD residential development proposal that has been on hold for years in the Leach Run Parkway area;

A requested town alley vacation made by members of the Holloway family that has potential negative impacts on neighboring properties, including the Church of the Brethren;

Received a review of the Town budget process and items proposed in the Fiscal Year-2024 Town Budget;

Reviewed three Jan. 3 Consent Agenda items – Purchase of a “Cab and Chassis” for Public Works Department, a bid for a “Thermoplastic Pavement” marker, and a bid for a “SS Dump Bed Body”;

Reviewed the agenda for the Jan. 19 Town-County Liaison Committee meeting;

And various council committee appointments before adjourning to a scheduled Closed Session.

Watch the January 9 Town video of the Special Meeting and Work Session – the SEESUU appeal discussion begins with the planning director’s comments at the 45:50 mark of video and concludes at the 1:18:37 mark.