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EDA in Focus

Defendant attorneys cite vagaries, legal conflicts in EDA civil suit

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With EDA civil litigation filed and a special grand jury empanelled to look into potential criminal actions related to EDA finances, the Warren County Courthouse is a center of community attention these days. Royal Examiner File Photos/Roger Bianchini

Attorneys for defendants in the civil litigation filed on behalf of the Front Royal-Warren County Economic Development Authority on March 26 have filed a series of motions seeking delays, additional information and even dismissal regarding the charges against their clients.

A common thread among a number of the defense motions filed April 15 and 16 is that despite the 199-point compliant contained in over 30 pages, the civil filing is vague as to individual responsibilities in seeking recovery of a minimum total of $17.6 million in allegedly misdirected or embezzled EDA assets.

Served as liable parties in addition to former EDA Executive Director Jennifer McDonald and two real estate companies in her name, were Warren County Sheriff Daniel McEathron a partner in McDonald’s companies Da Boyz and MoveOn8; Earth Right Energy LLC and its two principals Donnie Poe and Justin Appleton; and the first commercial client at the former Avtex Superfund site’s planned Royal Phoenix Business Park, ITFederal and its CEO Truc “Curt” Tran.

Attorneys for Appleton, Poe and Earth Right Energy seek dismissal of the complaints against their clients based on an absence of specified allegations regarding them, as well as possible Limited Liability Company (LLC) exemptions on personal liability for company business.

“The nearly 200 paragraph lawsuit names nine defendants, however focuses mainly on the actions of Defendant Jennifer R. McDonald, as in individual perpetrating an alleged fraud or scheme in her capacity as Executive Director of the EDA. Despite this contention, the Plaintiff fails to articulate a sufficient basis in fact or law of said scheme or fraud, and most certainly fails to plead a case against the named co-Defendants, and in particular, Donald F. Poe,” attorney William D. Ashwell writes on behalf of his client.

Ashwell, as do other defense counsel, contends the EDA as plaintiff appears to be transferring responsibility for its own past mistakes or inadequate oversight upon the defendants. “The instant action centers around revelations regarding a systemic dysfunction of the entity and organization… known as the Economic Development Authority (EDA), and to a greater degree the municipality and board of supervisors for Warren County,” Ashwell writes in prefacing his call for dismissal of the claim against Poe.

The faces have been changing on the EDA Board of Directors over the past year or so. And with two seats remaining unfilled by the county supervisors in the wake of Greg Drescher and Ron Llewellyn’s resignations submitted at this March 22 meeting, it is a shorthanded board that is facing the future under the shadow of the past.

It is a thought echoed by McDonald attorney Lee Berlik.

“The Warren EDA, Plaintiff in this action, is engaged in an attempt to smear Ms. McDonald by blaming her for every bad decision made by the Warren EDA board over the last several years and turning business deals the Warren EDA now regrets into implausible conspiracies. Plaintiff suggests every statement by every counterparty it now regrets crediting was a false statement by Ms. McDonald… instead of a false statement to Ms. McDonald,” Berlik writes (emphasis in context) in his Demurrer and Motion for a Bill of Particulars on behalf of McDonald.

Berlik, who is also representing McDonald in her dueling civil defamation lawsuits with Warren County Supervisor Tom Sayre, R-Shenandoah, cites what he references as the EDA civil action’s one complaint against McDonald real estate company MoveOn8, to illustrate what he sees as flaws in the litigation and case against what he terms “the McDonald Defendants”.

“Other than being identified, Defendant MoveOn8, LLC is alleged to have taken action in one of the 160 factual allegation paragraphs. See Complaint at graph 146. That allegation alleges that MoveOn8, LLC received a conveyance of one single property (which it still holds in constructive trust for the EDA) worth approximately $1 million dollars. Yet, despite this single reference to MoveOn8, LLC, the only fair reading of the complaint is that Plaintiff claims MoveOn8, LLC committed fraud, converted property, engaged in conspiracy, was unjustly enriched and participated in an ultra vires (improper) transaction – and damaged the Warren EDA in an indeterminate amount in excess of $17,640,446.16,”

The amount cited in EDA civil suit paragraphs 146 through 148 in the above-referenced transaction is $1,007,672.84. And like that total, there are specific amounts referenced in most every civil suit paragraph regarding specific projects cited in alleged misuse of EDA assets.

And while some of those actions were authorized by the EDA board, like the $10-million loan to ITFederal; payments on Afton Inn renovation work; the purchase of the Royal Lane Workforce Housing property; or solar project contracts, it is asserted in the EDA civil filing by the Sands-Anderson law firm that such authorized movements were based on inaccurate or false information provided by McDonald.

At issue for all the EDA civil case defendants will be countering the plaintiff contention that there was knowing involvement or profiteering from either unauthorized movement of EDA assets or complicity in the alleged misrepresentation of the factual basis for authorized movement of EDA funds or contractual work.

In filing a motion to stay the EDA civil case and issue a protective order against a response to plaintiff Discovery motions involving his client Sheriff McEathron, attorney Edward MacMahon, Jr. notes the empanelling of a special grand jury the day after the EDA civil litigation was filed.

“Considering the complexity of the issues raised in this matter and obvious overlap of the allegations in the Complaint and the matters now within the jurisdiction of the special grand jury, this case should be stayed until such time as the Special Grand Jury concludes its investigation of this matter. That stay would allow Mr. McEathron to defend himself in this case without fear of self-incrimination,” MacMahon wrote.

Judge Clifford L. Athey Jr. gave the special grand jury to September 30 to complete its investigation into potential criminal activity related to the EDA civil action.

Thus far three attorneys of the Holland & Knight LLP firm located in Tyson, Virginia, Brandon Elledge, Terry Elling and Kevin D’Olivo, have only filed notice of their representation of ITFederal and its CEO Truc “Curt” Tran. The $10-million loan to ITFederal facilitated by the EDA in which the 147-acre Royal Phoenix Business Park property was used as collateral to achieve the bank loan, is a significant portion of the $17.6 million being sought for recovery in the EDA civil suit.

Under the watchful eye – that does not look like a $10-million construction project not far from the EDA office in the old American Viscose Admin building at right.

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EDA in Focus

McDonald served with eight new felony warrants from EDA investigation

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Jennifer McDonald has been served with new felony warrants while housed in the Fairfax County Jail – Photo/RSW Jail website.

The Fairfax Adult Detention Center confirmed Monday evening that former EDA Executive Director Jennifer McDonald had eight additional felony sealed indictments served on her Friday, June 21. Six of those new charges are embezzlement of over 200 and two are obtaining money by false pretenses over $200.

The date of the new warrants matches the final day of witness testimony last week before the Special Grand Jury empanelled to investigate potential criminality related to the EDA financial fraud investigation Warren County has spent $600,000 on thus far on behalf of the EDA.

The six new McDonald warrants mirror the first four warrants she was served with by Virginia State Police on May 24, two on the embezzlement felony and two on obtaining money by false pretense felony. No further information on exactly what aspects of the EDA financial fraud investigation the new charges relate to was immediately available.

However, an educated guess might be that they relate to the two felony counts of embezzlement of EDA assets McDonald’s former administrative assistant, Michelle “Missy” Henry was arrested for on Monday afternoon, June 24.

As recounted in our related story Henry’s name was prominent in the Cherry Bekaert financial investigation of EDA operations regarding the B&G Goods business the EDA financed in the old Stokes Mart building at East Main and Water Streets in downtown Front Royal.

McDonald has been incarcerated since May 24, twice being denied bond as a flight risk by Warren County Circuit Court Judge Clifford L. Athey Jr.

The former six-figure salaried EDA executive director was transferred to the Fairfax Jail from RSW Regional Jail on June 11. At the time RSW Jail Superintendent Russ Gilkison explained the transfer as an effort to normalize McDonald’s jail experience. Due at least in part to the high profile nature of the EDA financial scandal and high-running emotions throughout the community about it, McDonald had been kept in isolation for protective custody since her booking at RSW. The move to Fairfax where she and her cases are not front page news will allow McDonald to mix in with the general inmate population.

Henry is due in court Tuesday morning on the 9 a.m., morning docket. Legal representation and bond are likely topics of that hearing. It is not clear when a hearing on McDonald’s new criminal charges might be held or whether she would appear with her criminal attorney, Fairfax-based Peter Greenspun.

UPDATE: Second former EDA staffer arrested on embezzlement charges

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UPDATE: Second former EDA staffer arrested on embezzlement charges

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Michelle Leigh ‘Missy’ Henry – Mug Shot from RSW Jail website

RSW Regional Jail officials confirmed that former Front Royal-Warren County Economic Development Authority Administrative Assistant Michelle “Missy” Henry was being processed into the facility Monday afternoon, June 24. Henry was booked at 4:37 p.m. on two felony counts of embezzlement for the “unlawful use, disposal, conversion, embezzlement of property of the EDA”.

Henry’s arrest comes exactly a month after former EDA Executive Director Jennifer McDonald’s arrest, also by the Virginia State Police, on May 24. McDonald was arrested on four felony counts related to the EDA fraud investigation, two of Fraud-Obtain Money by False Pretenses in excess of $200; and two of Larceny-Embezzlement in excess of $200. It is believed those charges relate to credit card payments McDonald attributed to Afton Inn redevelopment work.

Dates attached to the Henry’s warrants are for actions occurring between October 1 and December 30, 2016 and September 1, 2014 to December 30, 2016.

Henry’s name figured prominently in one of 10 new allegations attached to plaintiff filings in the EDA civil litigation ordered by Judge Clifford L. Athey Jr. on May 22. Henry was cited for involvement in dispersal of assets tied to the B&G Goods retail operation in the old Stokes Mart building that the EDA purchased in 2014, as well in a possible scheme related to the building’s purchase.

“MCDONALD is suspected of colluding with HENRY, LAMBERT, and possibly POE to acquire the Stokes Mart property under false pretense to facilitate several different embezzle schemes of which payments herein as repairs and maintenance for B&G or paid directly to LAMBERT are approximately $21,000,” CPA fraud investigator Cherry Bekaert wrote.

LAMBERT is believed to be Billy Lambert, who with Glen Simms were the B&G Goods proprietors, to whom the EDA issued a small business loan. Poe is believed to be Donald Poe, one of the proprietors of Earth Right Energy which is named in a solar business operation also cited in the EDA civil litigation.

It is also believed that McDonald’s sister, Kathy Butler, was in a relationship with Lambert at the time of the EDA’s involvement with B&G Goods. Emails between McDonald and Henry in the Cherry Bekaert summary suggest a possible plan to conceal some activities from “Billy” around the sale off of store materials and a van in the wake of the November 2016 closing of the business.

“Suggest how we can maybe sell inventory. And get that van back to sell. He tell garnett HE got title free and clear and that’s not the edas…blah blah…Or whatever u think is the best way to handle this,” Henry emailed McDonald on December 19, 2016.

“I’m on my way to see Billy now what does he think is going to happen to that $36,000 loan,” Henry added in an email to McDonald the following day.

“That’s what we are going to tell him selling the van would help pay. Maybe put it that way that we were thinking the van would help pay that off,” McDonald replied to Henry on December 20, 2016.

Several emails exchanged between Henry and McDonald on February 4, 2017, further address a financial split from the sale of items sold following the closing of B&G Goods.

“How much money would make u happy for me to have before we start splitting what is bought* in at the store?” McDonald wrote to which Henry replied, “I wud b ecstatic to get u back all u put in…but that’s unreasonable.”

“$15,000 and then we split everything from there?” McDonald suggested, adding several messages later, “I made even more that $15k so please let your conscious rest easy” and concluding the

February 4, 2017 email chain to Henry, “And now i can feel better bcuz I felt bad that u were out money”.

The Cherry Bekaert report further states, “On 02-27.2019 we learned through WHITTEN that he and the EDA Interim Director ANZIVINO questioned HENRY about her involvement with B&G after learning of the above text exchanges.

“HENRY admitted that both she and MCDONALD personally invested money in B&G. HENRY revealed her investment was $7,000 but apparently said nothing about what MCDONALD had invested. WHITTEN also did not recall the EDA BOD giving approval for a $30,000 loan to B&G as mentioned above. HENRY was asked about DABOYZ (McDonald real estate company) paying of B&G’s loan but apparently stated she didn’t know why that was done.”

Even though EDA officials said Henry resigned, her personal photos and children’s art work remained at her unmanned desk for at least two weeks after her March 18 resignation.

Missy Henry’s arrest comes in the wake of several days of interviews conducted by the Special Grand Jury last week. That Special Grand Jury was empanelled to investigate potential criminality tied to the EDA fraud investigation and consequent civil litigation.

The new court filings in the civil litigation from which the above messaging and summaries are included are from the “work papers” of contracted investigative public accounting firm Cherry Bekaert. Cherry Bekaert was contracted in mid-September 2018 and has only recently appeared to have wrapped up its investigation as a consequence of a decision by the Warren County Board of Supervisors not to commit additional funding to the $600,000 already spent for the investigation into indications of fraud in EDA financial operations over the past decade.

The initial result of that investigation is the EDA civil litigation filed March 26 seeking $17.6 million dollars in misdirected or embezzled EDA assets, a number now up over $21 million dollars.

Information received by Royal Examiner was that the Virginia State Police were at the residence Henry shares with husband Garnett at on Browntown Road Monday afternoon.

Norma Jean Shaw contributed to this report.

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Crime/Court

BREAKING NEWS: Former EDA administrative assistant Michelle “Missy” Henry arrested by VSP

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Missy Henry, the second person to be arrested in connection with the EDA embezzlement investigation. / RSW Regional Jail
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WARREN COUNTY – Michele “Missy” Henry, who worked alongside former EDA Director Jennifer McDonald, who is currently jailed on a number of charges related to embezzlement of funds from the entity, was arrested Monday (June 24) without incident at her home by the Virginia State Police.

Henry has been charged with two counts of felony embezzlement and is currently being held without bail.  She is scheduled to appear in Warren County Circuit Court on Tuesday, June 25 at 9 a.m.

This is a developing story that will be updated as information warrants.

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EDA in Focus

Town files suit against EDA, McDonald to recover $3 million of Town assets

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Jennifer McDonald and then-Councilwoman Bébhinn Egger square off in October 2016 over the substance of public representations about EDA projects, most prominently ITFederal and Workforce Housing. Unfortunately none of her colleagues were listening – several, then Mayor Tharpe and Councilmen Meza and Tewalt, have since apologized for that lapse. Royal Examiner File Photos/Roger Bianchini

After months of unsuccessful efforts to be included with the EDA and County in information gathered on Front Royal-Warren County Economic Development Authority financial improprieties as it applies directly to money that it may be owed, the Town of Front Royal has filed suit to recover an estimated $3 million dollars of Town assets from the EDA and its former executive director, Jennifer McDonald.

The civil action for lost Town taxpayer assets was filed at 9:04 a.m. on June 21, just minutes after the opening of the Warren County Circuit Court Clerk’s Office. Served as agents of the EDA were EDA/County Attorney Dan Whitten, at his Warren County Government Center office, and newly-hired EDA Executive Director Doug Parsons, at his EDA Kendrick Lane EDA office. McDonald was served at the Fairfax County Adult Detention Center where she is now housed without bond on four related felony criminal charges. Judge Clifford L. Athey Jr. has deemed McDonald a flight risk was she to be released on bond.

The aggressively-worded complaint targets, not only McDonald for believed fraud, but the EDA Board of Directors and legal staff for “inexplicable” lapses of oversight in allowing the possible continuation of fraud against Town interests for at least three months beyond a confrontational August 2018 meeting between Town and EDA officials.

The Town complaint demands a jury trial to recover assets it admits it does not yet have a completely accurate estimate of due to the EDA legal counsel’s rejection of multiple FOIA inquiries about the result of the Cherry Bekaert investigation of indicators of fraud in EDA financial operations.

Town Attorney Doug Napier has been at the center of unsuccessful efforts to have the Town included with the EDA and County in information distribution from the EDA fraud investigation.

Of course the Town now has access to those almost 3,000 pages of documentation and its 100-page working paper summary on file in the EDA civil litigation court file. An initial exploration of those documents by Town staff perhaps led to the upping of its estimated losses from the $291,000 of debt service overpayments discovered by Town Finance Director B.J. Wilson in May 2018, to the $3 million dollars now cited as of June 21, the first day of summer 2019.

In addition to its own independent, contracted auditor’s confirmation of Wilson’s May 2018 discovery of years of debt service overpayments, the Town Complaint cites a subsequent August meeting with McDonald, then EDA Board of Directors Chairman Greg Drescher and EDA/County Attorney Dan Whitten at which, “It was Town employees and agents who, on August 23, 2018, caused McDonald to admit, in person and while in the presence of the EDA/County Attorney and in the presence of the Chairman of the Board of Directors of the EDA, that McDonald had personally submitted false, and thereby knowingly and fraudulently, billing invoices to the Town for payment.”

Citing his public schools administrator’s work schedule, Drescher announced he was stepping down as EDA board chairman the following day. He has since resigned from the EDA board. Drescher and Ron Llewellyn submitted their resignations on March 22, effective the following day as the Cherry Bekaert investigation was winding down.

Who could have known? Then EDA Board Chairman Greg Drescher and McDonald field Workforce Housing questions from Supervisors Sayre and Fox during sometimes contentious June 2017 county board-EDA work session.

Also on the day following the apparently volatile August 23 Town-EDA staff meeting, or very close to it, the Town Complaint notes its contact of the Virginia State Police requesting “a complete law enforcement investigation of the EDA and McDonald” which it adds was begun “immediately” and continues “to this day.”

It was VSP that arrested McDonald on May 24 in the wake of Special Grand Jury indictments handed down from the investigation into potential criminality related to EDA financial activities and the EDA civil litigation filed March 26.

It is here on page seven of its nine-page complaint, where the August 23 meeting is addressed, that the Town zeroes in on what it characterizes as an ongoing pattern of “inexplicable” negligence by the EDA Board of Directors.

“Notwithstanding the events of August 23, 2018, the EDA Board of Directors, inexplicably, allowed McDonald to retain her position as Executive Director of the EDA with all of her rights, privileges and duties as before, with no known restrictions as such,” the Complaint begins in paragraph 18, subsection D, adding the word “inexplicably” three more times to describe the EDA board’s lack of disciplinary action or even the implementation of increased oversight of its executive director in the subsection D paragraph.

“The EDA Board of Directors inexplicably did not immediately fire or otherwise discipline McDonald … inexplicably did not restrict McDonald’s access to the EDA offices or her duties … inexplicably did not immediately call law enforcement to investigate McDonald or her activities … not withstanding that the Town’s auditor on that date rightfully and appropriately personally called out McDonald for committing fraud upon the Town in the presence of McDonald … the EDA’s Chairman of its Board of Directors and in the presence of the EDA’s attorney,” paragraph 18-D reads, adding a fifth and final “inexplicably” to describe the failure to place their executive director on administrative leave pending a resolution of the fraud allegation made by the Town auditor on August 23, 2018.

VSP and the FBI descended on the EDA headquarters to search for potentially criminally-related materials regarding EDA financial operations on April 16, 2019. Five weeks later the EDA’s former executive director was arrested by VSP following four felony criminal indictments being handed down by a Special Grand Jury.

Of that series of “inexplicable” EDA board lapses the longest paragraph in the complaint – at one-and-a-half pages – concludes of the period between August 23 and December 2018, “…McDonald was able to continue to and did in fact misappropriate and embezzle EDA’s moneys and taxpayers’ moneys. In fact, according to widely published accounts, on November 28, 2018, McDonald as Executive Director was able to convince the EDA’s Chairman of the Board of Directors to sign a deed of conveyance to a highly publicized and controversial workforce housing project property worth hundreds of thousands of dollars to a third party for a consideration of only ten dollars, concerning which the Chairman was publicly quoted in the press as saying that he had no reason not to trust McDonald when she handed him the deed to sign without him reading the deed, even though at the time she was under State Police investigation, federal government law enforcement investigation, and the EDA and McDonald were under the aforementioned Financial Study for this very same misappropriation and embezzlement of moneys.”

Former EDA Chairman Drescher, back to camera, and Attorney Whitten oversee a lockdown of the executive director’s office, including remote computer access, on Dec. 20, 2018, the day McDonald resigned.

Paragraph 10 of the complaint states that, “As a result of the incorrect and incomplete documentation the Town has received to date from the EDA and McDonald, it is unknown to the Town when the moneys were misappropriated by the EDA and McDonald; or who are the identities of all the persons or entities who might have been involved … or where the moneys misappropriated are now located or if it is now in the United States of America, or if it is even now recoverable.” The following paragraph cites the potential of a statute of limitations kicking on some of the longer misdirected Town money.

The outset of the civil complaint notes that it is currently the Warren County Board of Supervisors that “solely appoints the Board of Directors of the EDA”; and that with the EDA it is the County that funds the EDA’s operational budget, with the Town playing no current role in either. In the wake of the County’s assumption several years ago of the Town’s portion of the EDA’s operational budget as part of the continuing Route 340/522 Corridor agreement compensation negotiations, the Town does continue to contribute to portions of the EDA debt service payments, as illustrated by the discovered years of debt service overpayments continuing into 2018. The Town also contributes by way of a fair-funding formula split for projects of mutual town-county interest.

In March former County Board Chairman Tony Carter and County Administrator Doug Stanley await an EDA Board Closed Session discussion of the Cherry Bekaert financial fraud investigation of the EDA. Carter and Stanley have both caught public meeting expressions of ire over a perceived lack of County oversight of EDA operations allowing questionable transactions to occur over a period of years.

In what may flirt with an editorial observation, it would appear to this long-time local municipal reporter that the Town voluntarily withdrew from EDA oversight and board appointment authority, rather than being compelled to do so by the County’s assumption of its EDA operational funding. That is because that assumption was done as part of negotiated County compensation to the Town for the extension of Town central water-sewer utility into the county to facilitate corridor commercial-industrial development. So if not in the filed civil complaint or open court, behind closed doors town officials might want to whack themselves on the back of the hand for not maintaining more operational oversight of how the EDA was functioning, particularly as much of that functioning continued and continues to involve in-town projects.

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EDA in Focus

Liar, Liar, Pants on fire..

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Councilman Eugene Tewalt discusses Work Force Housing Project at Town Council worksession. Photo and video by Mark Williams, Royal Examiner.
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At the Front Royal Town Council Work Session on June 10th, Councilman Eugene Tewalt brought up the Work Force Housing project, again. This project was brought to Council in 2016 and a special use permit was granted on November 14, 2016. This permit was issued to the EDA and allowed for three 12-unit apartment buildings, for a total of 36 apartment units intended to be owned by the EDA and rented for workforce housing.

In an interview with Royal Examiner publisher Mike McCool, Tewalt said he would like those permitting exceptions rescinded because the Town was lied to about who the actual developer of the property would be and more.

The Royal Examiner’s camera was at the worksession – watch the Council discussion of the matter.

Download special use permit and documentation here.

Should Town Council rescind Work Force Housing permitting exceptions? Interview with Councilman Eugene Tewalt

Here’s the what is outlined in the special permit:

This SPECIAL PERMIT incorporates the application and all plans as submitted with the application and the following conditions:

1. The special use permit is only valid for 36 apartment units on the subject property, and includes a special exception to Town Code 148-820.H.3 for the proposed extension of Royal Lane as shown on the preliminary site plan. The apartment units shall be marketed as workforce housing.

2. The portion of the proposed access road extension of Royal Lane that is part of the adjacent parcel, identified as Tax Map Parcel 20A17-1-14A, shall be dedicated to the Town prior to issuance of any construction permits.

3. The remaining portion of the proposed access road extension of Royal Lane, as identified on the preliminary site plan, shall include all necessary access and utility easements, as well as a right-of-way reservation to the Town. Such reservation shall legally authorize the Town to dedicate the roadway as a public street when determined by Town Council, such as, but not limited to, when extension of the road is feasible.

4. All site improvements and utilities shall be constructed and paid for by the Applicant, and all applicable utility connection fees shall be paid at the time of application for a zoning permit to construct the apartments, unless otherwise waived by Town Council.

5. A complete final site plan application shall be submitted that adequately addresses the technical requirements of the Town Code and the review comments included in the staff report. Provided that the final site plan generally conforms to the preliminary site plan, as submitted with this application, Town Staff is authorized to approve the final site plan.

6. A playground, sitting area, and bicycle racks shall be provided. The playground shall meet the standards of the Public Playground Safety Handbook (2010), published by the U.S. Consumer Product Safety Commission, or comparable alternative standard approved by the Building Official and Planning Director.

7. Town Council, or other designated representative, may inspect the property at any reasonable time to ensure compliance with local regulations, including, but not limited to, the conditions placed on this special use permit. Upon inspection of the property, if it is found that the property is not in compliance with local regulations, including but not limited to, the conditions of this special use permit, the Town may revoke this special use permit after notice to the applicant and public hearing.

8. The proposed apartment units shall be marketed as workforce housing, and shall not be used as subsidized housing for “very-low” or “extremely low” incomes, as classified by HUD.

9. The final design of the apartment buildings shall substantially conform to the building elevation drawings submitted by the EDA.

This SPECIAL PERMIT applies only to the property noted herein and is not transferable to any other property.

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Crime/Court

Not only communications, but Sayre net worth at issue in motions hearing

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From any angle in any season, spring here it would appear, the Warren County Courthouse presents a picturesque, not to mention busy, legal symbol for this community. Royal Examiner File Photos/Roger Bianchini

Attorneys in the Jennifer McDonald defamation suit against Tom Sayre argued a variety of issues during the June 19 Discovery Motions hearing in Warren County Circuit Court. At issue was the scope Discovery materials Sayre is compelled by the court to produce in response to plaintiff motions, including a reply to what the Shenandoah District County Supervisors’ net worth is.

On that latter issue Sayre attorney Margaret Fonshell Ward argued that while such information may eventually be relevant in such a civil damages case, it is not subject to a Discovery Motion by the plaintiff at this point in the pre-trial proceedings.

“Right now is not the time – it can be addressed later,” Ward told the court of establishing her client’s net worth.

McDonald attorney Lee Berlik countered, citing a Fairfax case he is handling involving an airline, in which such Discovery was allowed.

“I agree it is the defendant’s burden of proof (in establishing their net worth) but the plaintiff has the option of seeking the information,” Berlik argued, observing, “If it turns out Mr. Sayre is a billionaire … he may not want the jury to know that it wouldn’t be a burden for him to pay” the damages being sought.

Those damages in McDonald’s February-filed counter suit to Sayre’s $25,000 defamation suit filed in September 2018, total $600,000, including $350,000 in punitive damages.

Am I worth more or less than Donald Trump, Tom Sayre may have been daydreaming during a past county board work session. We could find out if McDonald doesn’t agree to seal a Discovery response from Sayre about his net worth AND Trump ever releases his tax returns – no, we’ll NEVER find out.

Both McDonald and Sayre’s defamation suits revolve around the infamous “conspiracy to terrorize McDonald” note discovered at the scene of a stone-throwing vandalism at her property McDonald reported to law enforcement the evening of June 15, 2017.

As observed in yesterday’s lead hearing story, while dismissing the false police report charge against McDonald on Halloween the judge observed that something was “horribly wrong” about the note.** And Berlik himself observed during Wednesday’s hearing, “The note remains a mystery.”

Judge allows Shaw-Sayre communications Discovery, but not third-party

But back to the net worth question attached to McDonald’s defamation suit against Sayre, Athey agreed with the plaintiff and granted its Discovery Motion for Sayre’s net worth.

Sayre attorney Ward asked that the information “not be disclosed beyond Mr. Berlik”.

“Do you have a problem with that?” Athey asked Berlik.

Berlik replied that he would like to check with his client before definitively answering that question.

“Okay, the two parties will know each other’s net worth – but perhaps not the public,” Judge Athey observed of the status of that Discovery Motion.

Should we go Dutch? – I don’t know, what are you worth; I don’t know, what are you worth?? Maybe this couple should just flip a coin.

As for plaintiff Discovery Motions for Sayre electronic or other communications, Athey ruled the defendant must provide a log of his phone records for 21 days surrounding the June 15, 2017 vandalism report, including the evening it occurred. Berlik argued that since the note included an instruction to call the numbers in the note “when anything has happened” what numbers Sayre may have received calls from in the aftermath of the reported vandalism incident are relevant.

The judge agreed; and Sayre’s attorney did not object to a focused request for phone records.

Athey also agreed that specific defendant communications in 2018 could also be relevant, and ordered them produced as well as relevant materials sought from 2017.

As for three months of Facebook communications or messaging, Berlik cited vagueness in the defendant response, “We don’t believe they’re there.”

The response to the plaintiff’s additional query, “Did you look?” was silence, Berlik told the court. The judge told defense counsel that a more appropriate response would be, “They may be there – I’ve looked, I didn’t find them.”

McDonald’s attorney also cited a lack of response to his request that the defendant provide any evidence that McDonald did fabricate the note or stage the rock-throwing incident. Athey observed that his experience of such cases was that there was no such evidence to produce.

However, the judge did not address how the 2900 pages, or even the 100-page summary thereof, of the Cherry Bekaert financial fraud investigation he ordered produced in the EDA civil case might impact such a related defamation case Discovery request, at least on the circumstantial side of the equation as to possible motive.

Cherry Bekaert investigative report appears in EDA civil suit files

Of course, Cherry Bekaert devotes an entire 18 bullet point sub-section titled “Scope Limitations” describing limits placed on its inquiry “by the EDA BOD (Board of Directors) and County Board of Supervisors” that set fact-finding limitations to its EDA inquiry. See more on that in a forthcoming Royal Examiner story and in this linked story.

Limitations, assertions in EDA investigative report present a mixed bag

** Footnote: The note pointed out to investigators responding to her report of the June 15, 2017 rock throwing vandalism details instructions and information tied to what appears to be a conspiracy to terrorize McDonald for some unstated purpose: “She either does this the easy way with us or we make her life hell. No one should get hurt in this, but scared absolutely,” paragraph three of the note reads in part.

The concluding of four paragraphs of instructional text in the typed or computer-printout note upon which no fingerprints were apparently found included the admonishments, “Do not take this sheet with you (reporter’s note: OOPS), but make sure to keep it in your car with our numbers. Do not call Tom during business hours cannot have anyone hearing the conversation, so call me first,” followed by a 202 number that evidence at McDonald’s October 31, 2018 false police report misdemeanor trial indicated was former Town Manager Michael Graham’s, followed by Sayre’s local legal office number.

On October 31, 2018, Graham testified he knew nothing of the note; and Sayre is alleged to have publicly asserted he believes McDonald fabricated the note and incident in order to discredit him professionally and politically – leading to the dueling McDonald-Sayre defamation lawsuits.

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Jun
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Sip & Glaze @ The Vine & Leaf
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Sip & Glaze at The Vine & Leaf! Join us for an evening of good company while you glaze your own lunch set (bowl and plate).
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1:00 pm Botanical Drawing Workshop – Sum... @ Art in the Valley
Botanical Drawing Workshop – Sum... @ Art in the Valley
Jun 29 @ 1:00 pm – 4:00 pm
Botanical Drawing Workshop - Summer 2019 @ Art in the Valley
Learn and practice the art of botanical drawing with local artist and instructor Elena Maza. This weekend workshop will focus on learning basic drawing skills as applied to botanicals: basic line drawings of leaves, flowers,[...]
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1:00 pm Botanical Drawing Workshop – Sum... @ Art in the Valley
Botanical Drawing Workshop – Sum... @ Art in the Valley
Jun 30 @ 1:00 pm – 4:00 pm
Botanical Drawing Workshop - Summer 2019 @ Art in the Valley
Learn and practice the art of botanical drawing with local artist and instructor Elena Maza. This weekend workshop will focus on learning basic drawing skills as applied to botanicals: basic line drawings of leaves, flowers,[...]
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10:00 am Design a chair for the SPCA CHAI... @ SPCA of Winchester, Frederick, and Clarke Counties
Design a chair for the SPCA CHAI... @ SPCA of Winchester, Frederick, and Clarke Counties
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Calling all artists!! Design a chair for the SPCA CHAIR-ity Brunch and save homeless animals. Pick up a chair from the SPCA Thrift Shop, build a chair, up-cycle a chair, paint a chair, or upholster[...]
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8
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10:00 am Design a chair for the SPCA CHAI... @ SPCA of Winchester, Frederick, and Clarke Counties
Design a chair for the SPCA CHAI... @ SPCA of Winchester, Frederick, and Clarke Counties
Jul 8 @ 10:00 am – 5:00 pm
Design a chair for the SPCA CHAIR-ity Brunch @ SPCA of Winchester, Frederick, and Clarke Counties
Calling all artists!! Design a chair for the SPCA CHAIR-ity Brunch and save homeless animals. Pick up a chair from the SPCA Thrift Shop, build a chair, up-cycle a chair, paint a chair, or upholster[...]
10:00 am Summer Art Week – Session 2 @ Art in the Valley
Summer Art Week – Session 2 @ Art in the Valley
Jul 8 @ 10:00 am – 12:30 pm
Summer Art Week - Session 2 @ Art in the Valley
Summer Art Week for children is designed for students who love art and want to go beyond what they have experienced in the school setting, while meeting the Virginia Standards of Art. Recommended ages for[...]
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10:00 am Summer Art Week – Session 2 @ Art in the Valley
Summer Art Week – Session 2 @ Art in the Valley
Jul 9 @ 10:00 am – 12:30 pm
Summer Art Week - Session 2 @ Art in the Valley
Summer Art Week for children is designed for students who love art and want to go beyond what they have experienced in the school setting, while meeting the Virginia Standards of Art. Recommended ages for[...]
1:30 pm Botanical Drawing 1 @ Art in the Valley
Botanical Drawing 1 @ Art in the Valley
Jul 9 @ 1:30 pm – 4:00 pm
Botanical Drawing 1 @ Art in the Valley
Learn and practice the art of botanical drawing in pencil with local artist and instructor Elena Maza. Tuesdays: 1:30pm – 4:00pm, July 9th – 30th. Classes will be held in our upstairs studio at 205[...]
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10:00 am Summer Art Week – Session 2 @ Art in the Valley
Summer Art Week – Session 2 @ Art in the Valley
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Summer Art Week - Session 2 @ Art in the Valley
Summer Art Week for children is designed for students who love art and want to go beyond what they have experienced in the school setting, while meeting the Virginia Standards of Art. Recommended ages for[...]
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11
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10:00 am Summer Art Week – Session 2 @ Art in the Valley
Summer Art Week – Session 2 @ Art in the Valley
Jul 11 @ 10:00 am – 12:30 pm
Summer Art Week - Session 2 @ Art in the Valley
Summer Art Week for children is designed for students who love art and want to go beyond what they have experienced in the school setting, while meeting the Virginia Standards of Art. Recommended ages for[...]