At its regular meeting on May 11th, the Warren County Planning Commission faced a small firestorm of opposition from property owners near a proposed Short-Term Tourist Rental at 801 Esteppe Road in the Fork District. The property is zoned agricultural. The applicant, Vanessa Portillo, gave an emotional appeal to the commission in support of her request to give the property a second chance, despite hasty organizing of opposition by neighbors. She and her husband bought the property needing repairs and upgrades, according to her application, and were determined to save it rather than tearing it down.
Ten citizens spoke at the public hearing, and all were opposed to the permit. The complaint was a familiar one that a Short-Term Tourist Rental would bring strangers and dangers to a sleepy and close-knit neighborhood. Vice-Chairman Hugh Henry empathized with the neighbors but again noted that with all the short-term tourist rentals already in Warren County, there have been zero complaints or issues with law enforcement. That record is a clear indication that fears are most often overblown. Further, Mr. Henry continued, a short-term renter is just that – short-term. The applicant could just rent the property to someone for longer than 30 days, and as a long-term rental, there would be no permit or permission needed.
Chairman Robert Meyers pointed out that Short-term Tourist rentals are considered by the Virginia Legislature as residential uses, rather than commercial intrusions into residential neighborhoods. Vice-Chairman Henry also cited statistics that show traffic to a short-term rental property is, in fact, less than that for a full-time occupied dwelling.
After some discussion of property rights and the concerns of residents, the commission unanimously voted to recommend approval of the application, which now goes to the county Board of Supervisors. As always, the Supervisors also solicit public input, so another opportunity to express an opinion is available for residents who wish to be heard.
In a task left unfinished from the previous meeting, consideration of a Conditional Use Permit (CUP) for private use camping, the Commission heard from Planning Staff that the applicant, Patricia A. Brown, had agreed to two additional conditions for approval of the permit based on input from neighbors at the public hearing. The site is on Misty Meadow Lane in the Massanutten View subdivision. The final permit language will prohibit the use of major recreational vehicles on the site and will limit its use to no more than four organized non-commercial camping events. Property boundaries must be clearly marked throughout the duration of these non-commercial events. The commission voted unanimously to recommend approval of the amended request to the Board of Supervisors.
On a request by Justin and Maureen Sager, the Commission voted to recommend approval of a zoning ordinance change to define and regulate an exempt poultry abattoir, defined as a structure where poultry is slaughtered, processed, packed, and labeled for distribution. The number of slaughtered fowl will not exceed 1,000 per calendar year. Under the revised ordinance, this use would be allowed by right. There were no speakers at the public hearing, and Vice Chairman Henry asked if this ordinance change would apply to the whole county. Planning Director Wendling indicated it would apply to all Agriculturally zoned areas, subject to the supplementary regulations. The commission then voted unanimously to recommend the amended ordinance for approval by the Board of Supervisors.
Phong Nguyen is applying for a Conditional Use Permit for a short-term tourist rental for his property at 571 Wilderness Rd in Linden. The property is zoned Residential and is in the Skyland Estates subdivision in the Happy Creek District. Mr. Nguyen plans to use the property as a second residence part of the time and rent it out seasonally. There were no comments from other residents, and the Commission voted unanimously to recommend approval of the request.
A trio of requests from Emilia Cirker and Mark Saunders would grant a CUP for a Short-Term Tourist rental on their property at 5685 Gooney Manor Loop; amend the zoning ordinance to define and regulate retreat centers; and grant a Conditional Use Permit for a retreat center at that property. The brother and sister partners intend to offer wellness retreats, workshops, classes, and indoor and outdoor activities. Part of the time, the property will also serve Short-Term Tourist rentals. The public hearing yielded no speakers, so the commissioners asked if a bridge on the property would be sufficient to allow service vehicles access. The applicants indicated that they would initially restrict access to only neighboring properties that utilize the primitive bridge and ultimately plan to repair and upgrade it. It is currently in need of repair and is unrated for the weight limit. The commission voted unanimously to recommend the two permits and the zoning ordinance change for approval by the Board of Supervisors.
Carl Boswell has requested a CUP for a Short-Term Tourist Rental for his property at 338 Walker Farm Drive in the Shenandoah District. The property is residentially zoned, and the Shenandoah Farms Property owner’s association has been notified. One neighboring resident, Larry Cupp, spoke during the public hearing, in opposition to the permit, with similar complaints of unfamiliar persons in an established neighborhood. “We don’t know what they’re up to. It could be anything,” he observed.
Chairman Myers responded that the Conditional Use Permit is just that – conditional. If guests violate the conditions, the permit can be revoked. If there are problems with a guest, the appropriate action is to contact the County Sheriff’s Office.
Matthew Ben Tow has applied for a CUP for a Short-Term Tourist Rental for his Agriculturally zoned property at 110 Demel Court in the Happy Creek District. There were no public comments during the public hearing, and the commissioners discussed a prohibition on open fires as a condition of approval. The applicant indicated that many of the properties nearby have fire pits, and he hoped to offer one for his guests. The applicant could have a fire pit for his own use, but commissioners indicated it should be covered or blocked from guests using it. The Commission voted unanimously to recommend approval for the permit with the additional condition.
The Commission’s Consent Agenda consisted of 10 items for Authorization to Advertise for public hearings for CUPs for four short-term tourist rentals, a private use campsite, a bed and breakfast, a guesthouse, a church, and two Zoning Ordinance amendments. Those items will be considered at the next regular planning commission meeting on June 8.
Supervisors fund school division 75%, clear way for WCPS employee bonuses
The Warren County Board of Supervisors (BOS) voted unanimously on Tuesday, June 28 to approve the fiscal year 2021-2022 budget category transfer request that will allow employees of Warren County Public Schools (WCPS) to receive a one-time bonus for their extra efforts during the COVID-19 pandemic over the last school year.
“I am thankful to say we are moving forward with well-deserved bonuses for our teachers and staff,” Warren County School Board Chair Kristen Pence told the Royal Examiner today. “We truly appreciate all of the ways they went above and beyond for our kids and each other during the 2021-22 school year.”
WCPS Superintendent Christopher Ballenger also said he’s “pleased that the Board of Supervisors has allowed for the transfer of funds so that the bonus to all employees can be made.”
The School Board at its May 18 work session unanimously voted to give all full-time employees (as of May 31) a one-time net bonus of $1,500 and all part-time employees a one-time net bonus of $750 to acknowledge their hard work and efforts during the pandemic-impacted 2021-2022 school year. The money to pay for the bonuses will come from the board’s fiscal year (FY) 2021-2022 budget using unspent funds left over from unfilled positions, mid-year turnover, new employees entering on a lower pay scale, etc.
The School Board is categorically funded so had to request that the BOS allow the transfer of funds between categories to allow payment of the bonuses to all employees — including administrators, teachers, instructional assistants, nurses, bus drivers, and others.
But when the School Board took its request to the Supervisors at the June 7 BOS meeting, the request to transfer the funds was tabled and the School Board was asked to return to the June 14 BOS work session, where the request again got delayed.
The item was on the BOS June 28 agenda as an Unfinished Business item and several speakers had bones to pick with the supervisors about it.
Three teachers from Warren County High School and two members of the Warren County School Board on Tuesday urged the BOS to ensure school division staff receive proposed bonuses already approved by the School Board, and to fully fund the division as requested by the School Board.
During the first public comment portion of the BOS meeting, teachers earnestly requested that the BOS grant the School Board’s proposed bonuses for WCPS staff who continued working during the COVID-19 pandemic, stepping in to fill teaching vacancies and to maintain an effective and successful learning environment for students.
“I am nothing short of appalled by the actions of this board with respect to the teacher bonus currently on the table,” said Warren County Education Association President of Secondary Education Amy Flora, who is a math teacher at Warren County High School and a local resident.
“First, let’s stop calling it a bonus,” Flora told the BOS. “In reality, it is payment for uncompensated work with funds that are already available. The money in question is not a bonus. We earned it.”
Flora also said it was wrong for the BOS to try and tie the bonuses to their contracts for next year. “And should you deny this motion, do you think that word will not spread? Do you believe educators are not already watching and talking? Do you think your actions thus far have in any way bolstered the reputation of Warren County to any prospective or any current school employee?” she asked the Supervisors.
Due to the lack of adequate support both nationally and in Warren County, Flora said WCPS will continue to lose teachers “at an alarming rate.” She urged the BOS to support the teachers, staff, and superintendent of WCPS.
“Should you choose not to,” Flora added, “then you do not need to question why there are over 70 vacancies yet to be filled. In fact, you need not question why there are over 70 vacancies to begin with.”
Flora also said that if Warren County does not quickly and dramatically change the way it deals with the education system and begin making it a true priority, then she has “no doubt that a crippling staffing crisis will be inevitable.”
Two of her colleagues at Warren County High School and three other WCPS elementary school teachers echoed those sentiments, with one of them pointing out that Warren County is already known as “a teacher training ground for other districts.”
During Tuesday night’s BOS meeting, the Supervisors finally relented, though they still raised some of their own fiscal concerns, and essentially realized the bonuses were “all-or-nothing” — as Supervisor Vicky Cook called them — that depended on their approval.
Board Chair Cheryl Cullers and Supervisors Cook, Jay Butler, Walt Mabe, and Delores Oates were present, and all voted to allow the transfer of funds as requested by the School Board after a somewhat circuitous route to a motion being referenced into the meeting record.
“You now have your bonuses,” Cullers told the audience following the 5-0 vote and everyone clapped and cheered.
Warren County School Board Chair Pence, who is also a resident and mom of a rising 1st grader in WCPS, raised concerns with the Supervisors about a last-minute agenda addition by the BOS at around 3 p.m. on Tuesday to discuss the proposed fiscal year 2022-2023 budget for WCPS, as well as changes the BOS included as potential motions: either a $750,000 cut or a $3.5 million cut to the school division’s proposed budget.
Concerned about the current 70 unfilled teaching positions facing WCPS for the upcoming school year, as well as the division’s inability to retain teachers, Pence stressed that the School Board and WCPS Central Office staff worked diligently on creating a budget to wisely use funds.
Cutting $750,000 from the WCPS budget “would be very difficult for us; $3.5 million would be catastrophic,” Pence told the BOS, noting that likely more WCPS staff would be lost, as would any potential salary raises or scale adjustments for bus drivers and maintenance workers.
“I urge you to please reconsider these last-minute changes,” said Pence. “I was not aware [of the agenda changes], and I would have loved to talk to each of you prior to this evening’s meeting. It was quite a shock to see that.”
And the BOS “having to even consider bonuses for our teachers is a joke,” Besecker added. “It should be a no-brainer.”
Pence pointed out that WCPS will not be able to carry out its plans without full funding from the County, which makes up a significant amount of the overall WCPS budget. And she said the BOS already said WCPS would be level-funded, “so we’re not asking for additional funds from Warren County… we’re just asking you to accept the budget that we have adopted as our School Board.”
Antoinette Funk, also a Warren County School Board member and an educator who has lived locally for 25 years, agreed with Pence that the BOS should better support WCPS and the public education system. “Education is a powerful part of our community, and we have to support it”, said Funk. “We need to remain a community that continues to evolve.”
In the end, the BOS decided to go with another option offered by the County Administrator to categorically fund the school division’s proposed operating budget for the upcoming school year at 75 percent; to fully fund the WCPS capital improvements plan; and accepted the County’s budget as presented, according to Supervisor Oates’ motion.
Supervisor Cook, prior to the decision, stated that she did not want to borrow money to pay for the capital improvements requested by WCPS. “It’s not fiscally responsible,” Cook said, adding that the County is currently in debt for over $100 million. “And it’s because we keep borrowing… with most of it going to school capital improvements,” though Cook didn’t know the actual ratio.
Oates concurred, saying that “these bonuses” and capital improvements for WCPS “are not sustainable.”
“We can’t keep doing this,” said Oates, adding that the BOS will sit down with the supervisors-school board liaison committee “and try to work through this.”
In emails to the Royal Examiner on Wednesday, both Pence and Ballenger reacted to the BOS decision, adding that they remain hopeful for improved communication between their boards.
“I was shocked by the two options for the budget proposal. I was not contacted about the two proposals and there were no questions regarding how this would adversely affect the school division,” Ballenger wrote. “I’m glad we now have the opportunity to talk about this budget in more detail and discuss how this will impact the school system so that a sound decision can be made concerning the division’s FY-2023 budget.”
Wrote Pence: “While I cannot deny the surprise and disappointment I felt regarding the FY-23 budget discussion and action, I look forward to the conversations that lie ahead between the School Board and Board of Supervisors budget subcommittee.
“As I previously mentioned, the School Board’s proposed FY-23 budget offers amazing opportunities for WCPS and my hope is that by working together with the BOS it will gain full support,” Pence wrote.
The first round of Public Comments addressing the school budget issue begins at the 6:30 mark of the below-linked video; with a second-round following public hearings starting at the 2:29:35 mark. Supervisor and Public School staff discussion leading to the above-cited motion and vote on bonus funding continues between the 2:53:35 and 3:52:35 mark where a vote of approval of the $125,000 transfer is called. School Superintendent Chris Ballenger addresses capital improvement funding at the 2:50:50 mark, with a vote of approval coming at the 2:52:00 video mark.
Council approves first Short-Term Rental permit under new ordinance guidelines over some objections
As noted in our lead story on the Data Center permitting discussion, there were two issues involving the long-term impact on land use in town at the Front Royal Town Council’s June 27 meeting. The second of those, actually first up on the public hearing docket, was approval of Alexandria-based Bridget Scanlan’s Special Use Permit (SUP) request for a maximum four-person Short-Term Tourist Rental at 108 Virginia Avenue at its three-way intersection with First Street. A second Short-Term Rental permitting request for 201 East Main Street in the downtown mixed commercial-residential zoned area was also approved, with no speakers or opposition expressed.
However, that was not the case with the Virginia Avenue request which drew 17 public hearing speakers, 11 opposed to the use in the Residential-3 zoned neighborhood. Some neighboring residents, beginning with Viviano Rodriguez, cited concerns about public safety from short-term visitors being brought into the neighborhood. Setting the general tone for coming opposition speakers, utilizing charts and photos Rodriguez pointed to statistics indicating Air B&B operations leading to increased crime rates in some locales. He also noted a lack of sidewalks on the one-way, narrow downhill section of First Street intersecting with Virginia Avenue at Scanlan’s property, presenting additional danger, particularly to children and the elderly.
Noting the property owner’s out-of-county residence, Rodriguez warned that approval of this first permit under the Town’s new short-term rental code would set the stage for Front Royal to “become a property management city”. Rodriguez also said that Scanlan had been doing short-term rentals out of the property without a permit for a year, which he interpreted as disregard for codes and the law.
After four successive speakers against the permitting, Michael William was the first to raise questions about the public safety and neighborhood danger claims. He asked if there had been any complaints or police calls to the property when it was being operated previously without permitting. None were ever cited by any opposition speaker. Later, along that same theme next to last speaker Doug Ichiuji, a 20-year town resident and First Street neighbor of the applicant and her property, also raised issues about the general nature of many of the opposition remarks.
Ichiuji sad he had not seen the sort of traffic safety issues raised by previous speakers during his time there. He also pointed out council was being asked to judge Ms. Scalan’s application, not use it as a measuring stick for the overall value of short-term rentals as a special permit use. The Town passed a Short-Term Rental Ordinance with guidelines – Does Scanlan’s request fit within those guidelines was the question before council, Ichiuji pointed out.
Ichiuji estimated that the applicant spent over 50% of her time at her secondary residence on Virginia Avenue. He said he kept an eye on the property for her when she wasn’t there, as neighbors in the area do for each other. He pointed to nearby long-term rental apartments and wondered if their occupants were vetted as well as short-term rental clients often are. An answer was on the horizon.
Following Ichiuji to the podium was final speaker, applicant Bridget Scanlan. She assured council her plan in renting two of the home’s four bedrooms out to a maximum of four people at a time from late spring through autumn was not intended to make the neighborhood less safe. She purchased the home in 2018 to be an eventual retirement home, and as Ichiuji had previously told council, had invested in improvements to the property, with that eventual primary residence goal in mind. She also said she had met 13 of 21 nearby residents, all of whom had signed a petition of support of her application. She added that she was thinking of imposing a 5 or even 7-day minimum rental period, to minimize turnover and potentially attract renters with some business or other ties to the area.
Following the closing of the public hearing, several questions were directed by council to staff, including Planning Director Lauren Kopishki, Town Police Captain Jason Ryman, and Planning Commission Chairman Darryl Merchant, who was present as a citizen to address another public hearing topic as noted in our previous story.
Planning Director Kopishke said site inspection indicated that there was adequate on-site parking for four vehicles and that traffic was not seen as a dangerous consequence of the use by the planning department. In fact, responding to a question Kopishke said the applicant was “in compliance” with the town ordinance as approved by council.
Responding to questions about the planning commission’s recommendation of denial, Merchant said the major concern was that short-term rentals in town should be in owner-occupied residences to prevent the kind of out-of-area ownership/management trend Rodriguez had worried about. However, with Scanlan’s part-time presence estimated by her neighbor Ichiuji as high as 60% at times and her intent to only rent half of her property’s bedrooms, council seemed not to share that concern in this specific case.
As to crime and public safety, Councilwoman Letasha Thompson said she had researched the surrounding area and found that within a quarter-mile radius there “were no less than seven registered sex offenders, two of those having been convicted of offenses with children.” So, the question posed back to opponents citing public safety was who actually presents more of a criminal threat, nearby short or long-term renters? Thompson also said her research into Rodriguez’s presentation was that the increase in crime stats tied to Air B&Bs he cited all applied to one study of an area in Boston between 2011 and 2018. And the bottom line of that study, she pointed out, was not that short-term rentals attracted a criminal element, but rather that when there are many short-term rentals in one neighborhood, that neighborhood can lose its cooperative “community watch” ambiance and becomes more susceptible to criminality.
Responding to questions from Vice-Mayor Cockrell, FRPD Captain Ryman said the area was fairly quiet, and that it had not been a traffic problem area for 6 or 7 years. As an earlier speaker in support of the application pointed out, there apparently had been no complaint calls about 108 Virginia Avenue during the period of time Scanlan had been doing short-term rentals, indicating that neighbors weren’t even aware of the use over the months it was being done unpermitted. And they noted, upon learning of the permitting requirement, Scanlan has shut down the operation after six or seven months.
And with all these variables cited, council approved the Scanlan Short-Term Rental SUP application by a 5-0 vote, Gillespie absent.
Also on Monday night, following a Special Closed Meeting called for 6 p.m. to consider interviews and appointments to the Joint Tourism Board, on added regular meeting agenda item 1-b, appointed to 4-year terms on the Joint Tourism Board were Scott Turnmeyer, Jesse McClain, Hannah MacKinnon, and Gillian Greenfield.
Summary of action items and board reports of FR-WC EDA meeting of June 24
The Front Royal-Warren County EDA held the monthly meeting on Friday, June 24th at 8 AM. All Board members and the Executive Director were present.
Executive Director Joe Petty presented the request from the Town for a Utility Easement located on the Avtex site. The specific location is the parking lot area where the EDA and Laurel Ridge Community College (formerly Lord Fairfax) are in partnership where the school’s commercial truck driving class is located. The purpose of the easement is to correct storm-water management issues impacting 610-B and 612 W. 11th street. The board approved the immediate repair and replacement to the culvert and box to prevent further flooding of the 11th street area affected. The Board deferred approval of the of the proposed new 36-inch line until additional information on the easement is provided.
The Board also approved the release of Parcel 15 on Fairgrounds Road. The release was tabled at the May meeting because the Parcel 15 was not identified by address. The release is for 415 Fairgrounds Road which the EDA sold to Timberworks.
Jeff Browne, Chairperson, presented a request from Citi Bank to bundle the Royal Arms bond with other bonds to allow more funds available for affordable housing projects. After a thorough review by our attorney to insure there is no impact on the current bond agreement and a recommendation by the attorney to approve the board unanimously approved the request. The EDA board fully supports more funding for affordable housing.
Jorie Martin and Scott Jenkins presented the Avtex Committee report. The committee held two meetings in June to review past studies and recommendations. The committee decided to focus on the site in four parts. The first part is the Conservancy Side, second is the plant side, third side is the parking lot area adjacent to the police department and currently where the truck school is located, and the final piece is the West Bank across the river.
The Board discussed the committee report at length and and directed the committee to address questions raised and prepare a presentation at the July meeting. The board will be working with all stakeholders as the development moves forward. The full committee report is on the EDA website: www.wceda.com.
The board discussed integrating the EDA website with the county’s website. EDA Director Petty will be working with the county’s IT department and the EDA board on the project.
Joe Petty presented an update on the Small Business Loan Program. The accounts are in order and the EDA goal is to reestablish the Small Business Loan Committee and make the money available to small businesses in the town and county.
The board concluded with a closed session to discuss business opportunities and the pending litigations.
After discussion following comments of ‘private citizen’ Darryl Merchant on Data Center ‘by right’ concerns, council appears to shift course – better late than never
At its regular meeting of Monday evening, June 27, the Front Royal Town Council faced two issues with potential long-term consequences for the town’s future land use and utility infrastructure needs and costs. Those were public hearings on a Short-Term Rental Special Use Permit (SUP) request under the Town’s new ordinance guiding such quasi-commercial uses in Residential Districts; and on an Ordinance Amendment proposal that would allow Data Centers as a By Right use in Industrial-2 Districts.
In the first case, despite significant citizen and neighborhood opposition, countered by significant support, a 5-0 council majority (Gary Gillispie absent) decided to move forward with approval of the request within the new town ordinance guidelines. That approval was for Alexandria-based Bridget Scanlan’s SUP request for a maximum four-person Short-Term Tourist Rental at 108 Virginia Avenue at its three-way intersection with First Street.
However, on the second matter of allowing energy and water-gobbling Data Centers with a generally low job creation outlook as a “by-right” use rather than on a case-by-case Special Use Permitting review basis, council appeared to reverse its previously chosen course of action. After a first speaker in opposition to the “by-right” aspect of the ordinance proposal, followed by nearly unanimous council concurrence with that concern, council voted 5-0 to return the matter for additional review and re-advertisement for a vote on approval of Data Centers as an Industrial-2 District use by Special Use Permitting. We will focus on this second decision here while exploring the Short-Term Tourist Rental debate in a second story on Monday’s meeting.
The primary public hearing speaker was Darryl Merchant, who noted he was appearing as a private town citizen, not in his role as chairman of the town planning commission. But private citizen Merchant’s comments (beginning at the 1:37:15 mark of the below LINKED town video) echoed the recommendation of the planning commission, which was to require a Special Use Permit review of any Data Center application for a town industrially zoned location. Merchant began by commending the planning department staff for its background work in setting performance standards for Data Center reviews, adding, “I’m certainly not opposed to Data Centers other than I think it should be a special use and not a by-right use.”
Noting that Data Centers were currently a hot item on the economic development front across the commonwealth, Merchant noted that, unlike many established industrial-zone businesses, data centers were a relatively new and quickly evolving entity. He pointed to the generally huge size of the buildings – “They are massive both in square footage and in height” before moving to the utilities aspect: “Energy consumption is another concern we have. I know I’ve read some public comments from council regarding some of the electric blips (outages) that we’ve currently had; as well as water usage. You know water is a finite resource,” Merchant pointed out of the strain data centers can pose on a host municipality’s public utilities the entire community, industrial, commercial and residential, depend on.
He told council he believed the industry was taking steps to try and reduce that usage in the future, but cautioned that how successful those efforts would be is still an unknown. Merchant also observed that it was somewhat ironic the Town was placing Data Centers in the I-2 District with businesses generally providing a significant employment base for a community, while data centers generally provide a relatively small number of jobs for the local work force.
As to any fears that imposing the additional SUP review criteria might deter major players from considering Front Royal as a possible data center destination, Merchant pointed east. “You know Amazon just recently … submitted an application for a Warrenton site; and Warrenton does use the Special Use provision for approval,” he said in closing.
Having filed to run for a seat on council in November’s Special Election to fill the remaining two years of Scott Lloyd’s vacated term (current appointee Amber Morris filed to run in the three-seat general election), Tom Sayre followed Merchant to the podium for one of his three campaign, we mean public comment, trips to the podium. Sayre acknowledged his agreement with Merchant’s observations on the low employment numbers data centers provide. He estimated an average of 5 to 20 jobs, with 20 being a “high side” estimate, he observed. “So, I suggest you take a hard look at data centers,” Sayre concluded.
The public hearing completed, Vice-Mayor Lori Cockrell again chairing a meeting for absent Mayor Chris Holloway, put the matter to council. Amber Morris made an initial motion to “defer the item to a work session”. Cockrell seconded the motion, opening the matter for council discussion. Morris opened that discussion (at the 1:42:55 mark of linked video) noting a 20-year gap in council review of Industrial-zoned properties in town, calling them somewhat “random” in nature at this point. She also suggested not jumping the gun on major zoning decisions with the current Town Comprehensive Plan Review underway.
In turn, Vice-Mayor Cockrell (video 1:44:08), Joseph McFadden (1:45:55), Zach Jackson (1:46:47) agreed with the planning commission and private-citizen Merchant suggested change to requiring Special Use Permit review for data center applications into I-2 zoned properties.
But with council poised to vote on Morris’s original motion to return the matter to council work session discussion, Assistant Town Attorney George Sonnett suggested more precise motion wording to forego the necessity of a second public hearing, with the advertised public hearing having been closed. Morris gave it another try, amending her original motion to defer a vote on the proposed ordinance amendment to the July 25 council meeting following discussion at a July 11 work session. With council again poised for a vote, McFadden, who had seconded Morris’s reworked motion, wondered at the necessity of a month’s delay on a vote.
Noting an apparent consensus on the change to requiring the SUP review for data center applications, why not just go ahead and vote on an amended motion requiring SUP review of data center applications, McFadden asked. Town Manager Steven Hicks replied that the additional time would allow staff additional time for a review of standards, which led Morris to point to the planning staff review and subsequent planning commission recommendations that had already been made. McFadden also worried that “if we kick it down two meetings … politics comes into play …” as to influence on council’s decision-making process.
But after a brief conversation with Assistant Town Attorney Sonnett, Town Manager Hicks informed council that due to the way the proposed ordinance amendment had been advertised as a vote on by-right approval, a newly worded proposal would have to be advertised for another public hearing anyway. With additional questions looming (1:52:20), Hicks elaborated that following council work session discussion, the staff recommendation would be that the ordinance amendment proposal be returned to the planning commission. Planning Director Lauren Kopishki noted that would likely throw the matter into August for council approval of an adjusted ordinance amendment on data centers.
So, Morris went again, withdrawing her earlier amended motion to be replaced by one reading “That council send back Public Hearing item 7-E, an Ordinance Amendment to Town Code Chapter 175 to add Data Centers to make this by Special Use Permit only.” That motion was approved by a 5-0 vote – and here we go again.
Town Council-Town EDA Board discussion of future operational dynamics recalls recent past experience – but what can be learned?
During a joint meeting of the Front Royal Town Council and the recently created unilateral Front Royal Economic Development Authority (FREDA) Board of Directors on Wednesday, June 22, the two bodies reviewed the draft Bylaws developed for FREDA operations and any necessary adjustments to Town Code Chapter 16 regarding operations of a municipally created Industrial Development Authority (aka Economic Development Authority).
Dominating the conversation were issues of:
1 – Operational autonomy of FREDA in conducting its economic development initiatives based on guidelines provided by the town’s elected officials. Given its “marching orders” by council, would the FREDA board have to first bring every step toward economic development or retention to council for an “Okay” prior to moving forward, FREDA Board Chairman Rick Novak asked.
2 – Potential conflicts of interest of town staff in serving in roles under the auspices of both the town council and FREDA Board of Directors. Town Manager Steven Hicks also is serving as executive director of FREDA. Councilwoman Amber Morris asked of potential problems in that regard, what if in his EDA role Hicks participated in a closed meeting with a prospective FREDA client in which there was a non-disclosure agreement. Would that prevent the town manager from reporting to council relevant information on the FREDA initiative. Morris, who spearheaded the conflict of interest discussion, also questioned the advisability of having the same legal counsel represent both the Town and FREDA.
3 – Possible Town financial liability for its EDA’s actions, investments, and contractual arrangements.
4 – And an Operational Budget for FREDA to be determined by the town’s elected officials. Created as an economic development agent for the Town of Front Royal, FREDA is starting out with no financial or real estate assets of its own.
Town taxpayers might recall that well over a decade ago after council voluntarily withdrew its previous level of direct oversight of FR-WC EDA operations, the County took over full operational funding of the half-century old joint Town-County EDA. At that point the Town’s financial obligation revolved around its debt service on projects the FR-WC EDA oversaw and financed on behalf of the Town, like construction of the new police station.
As recently noted at a Warren County Board of Supervisors meeting by County Administrator Ed Daley, the FR-WC EDA still exists legally, just without any participation on the town government side. FREDA’s creation as an alternative to continued Town involvement in a post-scandal, restructured joint Town-County EDA, came in the wake of a council majority’s decision during the approximate year-and-a-half interim mayoral and town manager tenure of Matt Tederick to refuse offered good-faith negotiations to determine who was owed what in the wake of the FR-WC EDA financial scandal uncovered in 2018.
Rather, over the objection of then-Mayor Eugene Tewalt, a Town leadership majority decided to initiate hostile litigation against the newly restructured FR-WC EDA seeking self-determined losses and claiming a lack of liability for any financial scandal losses. Anyone recalling a town council majority’s approval of then-EDA Executive Director Jennifer McDonald’s request for what ended up being a four-month $10-million “bridge loan” (the last 3 months without interest compensation) to enable the ITFederal bank loan might wonder how that lack of liability argument might go in the courtroom.
Talk about potential legal advice conflicts of interest – THERE might be a glaring example of one that might have been. The now-dueling civil litigations between the Town and FR-WC EDA remain unresolved at the Circuit Court level. The $10 million ITFederal loan is the largest single claim in the FR-WC EDAs’ civil litigation attempt to recover about $21-million in believed embezzled or fraudulently attained assets.
But it wasn’t past actions leading to the creation of FREDA on the table at Wednesday’s joint meeting, as noted above, it was FREDA’s operational, structural, and financial future. And with decisions unresolved on several fronts, the two boards scheduled another joint meeting for Wednesday, July 13, tentatively from 4 p.m. to 8 p.m. Council present, Mayor Holloway and Joe McFadden were absent, agreed that most, if not all, major decisions should be made by the end of July.
“I agree, I don’t want to take two years to set this up,” Councilwoman Morris said in support of Letasha Thompson’s suggested July deadline on budget and staffing decisions.
Hooked into the meeting remotely was Interim Town Attorney James “Jim” Cornwell Jr. Cornwell referenced experience with 14 jurisdictions and their EDAs, only one of which had separate legal council than its founding municipality – “But it’s up to you,” Cornwell told council of potential conflict of interest issues.
The Town’s experience with the still unresolved $21 million joint Town-County EDA financial scandal and resultant civil and criminal litigations was also discussed. Cornwell suggested not overreacting. “I know that the Warren County-Town of Front Royal EDA, to use the vernacular, went to hell in a hand-basket. There are probably (here his remote transmission went garbled, but seemed to say – ‘a hundred or more’) EDAs, IDAs across Virginia that function very well as independent entities … and in the public good. They stay in contact with their appointing entities, I think I told you once before, the only way you can control the entity is by putting people on there you trust to do the job; and second by financially controlling them.
“I know there is some concern, and I recognize that,” Cornwell continued of the joint EDA financial scandal experience, adding, “But by putting good people on the EDA you won’t have those problems … You don’t want to be too gun-shy because of what happened before.”
“Thank you, Jim, I agree,” Thompson replied, followed by Vice-Mayor Lori Cockrell, chairing the meeting for the absent mayor, to add her thanks to Cornwell for his input. However, the vice-mayor added this observation: “Even though we don’t anticipate the same thing, obviously is going to happen here, we do answer to our citizens, and they are gun-shy, for the right reasons I might add.”
Berry Brown v. Town of Front Royal case dismissed, but who won?
Nearly 18 months after former Clerk of Council Jennifer Berry Brown filed a federal lawsuit against the Town of Front Royal for alleged sexual harassment by former Front Royal Councilman and Vice-Mayor William Sealock and subsequent wrongful termination by the Town, the case has been dismissed, after Brown’s legal team filed a stipulation of dismissal in the U.S. Western District of Virginia Court in Harrisonburg.
Attorney Timothy E. Cupp, of Harrisonburg firm Shelley Cupp Schulte, P.C., filed a stipulation of dismissal on Berry Brown’s behalf today, which stated, “Plaintiff, Jennifer Berry Brown, and Defendant, Town of Front Royal, Virginia, by and through their undersigned counsel, hereby agree and stipulate, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), that the entire action and all claims in Plaintiff’s Complaint are hereby dismissed with prejudice as to future action, with each party to bear her or its respective costs, expenses, and attorneys’ fees.”
Royal Examiner reached out to Ms. Berry Brown and Mr. Cupp; both declined to comment. The Town of Front Royal’s attorney in the case, Heather K. Bardot, did not respond to a request for comment.
Often, a stipulation of dismissal is filed in cases where both parties come to a settlement. A former town council member familiar with the case said recently they believed that the town’s legal team was trying to reach an agreement with Ms. Berry Brown, which would end the lawsuit without going to trial.
Berry Brown filed a civil complaint in federal court on Jan. 4, 2021, claiming sexual harassment by former Front Royal elected officials and wrongful termination from her job as clerk of council as retaliation for filing a complaint with the Town Human Resources Department.
A civil jury trial was slated to be held May 31-June 3, in U.S. District Court for the Western District of Virginia in Harrisonburg before a series of March filings caused U.S. Judge Thomas T. Cullen to continue the trial. It was initially set to begin on February 22, 2022, before being continued to May 31.
Interestingly, at a Special Meeting called prior to a Monday, June 13 work session, Town Manager Steven Hicks presented a request to the Front Royal Town Council for a late Fiscal Year-2022 Budget Amendment to allow the transfer of $150,000 from General Fund Reserves for the payment of “legal fees” through the Town’s liability insurance carrier. The motion was subsequently approved.
Royal Examiner’s Roger Bianchini, who covers the council, wrote in a recent story, “There was no discussion of the matter prior to the reading of the motion and vote. The staff agenda summary and prepared motion note that the $150,000 payment will be made to the Virginia Risk Sharing Association (VRSA) ‘for legal fees’ related to litigation.” VRSA was named as a second respondent in the Berry Brown lawsuit against the Town and has been represented by Andrew S. Willis and John B. Mumford Sr., of Glen Allen.
Bianchini followed up with Steven Hicks, town manager, who deferred a question on the destination of those legal fees to Finance Director B.J. Wilson, who said that further information on the $150,000 payment to VRSA was not available.
Bianchini, who contributed to this story, said Wednesday, “Authorization of $150,000 in additional fees to the Town’s liability insurer and co-respondent in the Berry-Brown case, followed a week later by an agreed-upon dismissal – coincidence?”