Facing approaching deadlines on the loss of as much as $10 million dollars in VDOT matching transportation funding for an altered north corridor developmental plan, principals of Crooked Run West, LLC made their case to the Warren County Board of Supervisors at a Thursday evening, June 13 work session.
The case they are attempting to make, for rezoning and various permitting from the County, and on another front for central water supplied by the Town, is to allow development of a mixed use but primarily residential project creating an estimated 1,025 new homes of various description on the bulk of 119 acres previously earmarked for the expansion of the Target-based Crooked Run Commercial Shopping Center. As local shoppers know, the Crooked Run Shopping Center is located at the northwest corner of the Route 340/522 and I-66 intersection north of the Front Royal Town limits.
And Crooked Run West LLC principals Ed Murphy and Tom Mercuro, with attorney Joe Silek Jr. were playing, not only to a county board holding the zoning and permitting reins to their request, but also to a tough public that has reacted negatively to the proposal. While only Murphy and Silek addressed the board during the work session, Mercuro helped field questions from the public following the 7:30 p.m. adjournment of the work session. That work session convened at 6 p.m., following a 5:15 closed session about – guess what (the EDA).
In explaining the requested change from a commercial to residential-dominated project, Murphy reiterated what Silek wrote to County Planning Director Taryn Logan on February 19 – that explanation is that the existing rezoning to commercial sought in 2009 after the establishment of phase one of the Crooked Run Commercial Center was made “in an environment where promising commercial development (particularly retail) was expected in the Route 340/522 Corridor.”
But a decade later in 2019, Silek cites a “substantial change” in the market place writing, “In 2019, shopping habits have shifted from the brick-and-mortar stores to online outlets such as Amazon. With this shift has come a significant drop in demand for commercial real estate. Moreover, the demand for office space and industrial space has likewise declined.”
So the Crooked Run West attorney asserted to the County Planning Director, “Thus, a rezoning of the Crooked Run properties from commercial to a development consisting of mixed housing types is a sensible response to these changes in overall trends in Warren County.”
Speaking of the EDA – we did briefly, didn’t we? – wonder if anyone has mentioned these changing commercial and retail trends to the EDA Board of Directors? But that’s another subject altogether.
During his work session presentation, Crooked Run Project Manager Murphy noted that for the bulk of its 11 years of existence Crooked Run Phase One has enjoyed 100% occupancy. However, that ended recently when a tenant in the mattress business declared bankruptcy and went out of business. The vacated 4,000 square foot space remains empty because no commercial tenant can be found to lease it,” Murphy told the supervisors.
Murphy reviewed the evolving proffer package that Crooked Run West is developing to address changing impacts on schools and other aspects of the community. During board questions Happy Creek Supervisor Tony Carter noted that he could not ask for specific proffers at this point in the process (because it is not legal).
But one question he could and did ask was the status of the Crooked Run developers’ negotiations with the Town of Front Royal for the central water deemed pivotal to the proposed residential development.
“If the Town says ‘no’ is that the end of it?” Carter asked Murphy.
Noting that the original Crooked Run West commercial proposal had been earmarked for Town central water, Murphy indicated he did not believe the current town council would arbitrarily deny the request for water to the newly-proposed project if it is rezoned and permitted by the County.
Earlier Murphy had noted that the Town currently provides 2 million gallons of water daily and is permitted to draw 4 million gallons a day from the Shenandoah River, with a water plant capacity of 6 million gallons per day.
Murphy asserted that the proposed changes at full build out would result in the use of about 100,000 gallons of water daily. Murphy also noted that Crooked Run West had reduced its annual build out plans from 225 homes to 150 homes per year, adding that the actual number of yearly building permit requests would be market driven to the proffered limit.
The water discussion led Board Chairman Dan Murray to ask how the projected water/sewer demands submitted to the board estimated slightly less than 100,000 gallons of water used per day (97,250), but almost 122,000 gallons of corresponding sewer capacity projected. The question’s source is the Town’s calculation of its sewer charges based on water usage.
Murphy noted the water projection was based on average residential usage but wasn’t clear on the difference in the sewer projection.
This work session was one step in the Crooked Run West proposal’s march toward a public hearing before the supervisors as they make their dual-fronted presentation to County and Town officials who have differing, but as Carter pointed out, crucial roles in propelling the project forward. After the meeting Silek said a public hearing might not occur before September as details are ironed out between the development group and municipal officials.
See the full work session presentation, discussion and questions, as well as some of the post-work session discussion between the public and Crooked Run West officials in the Royal Examiner video to be posted tomorrow.
Liar, Liar, Pants on fire..
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.
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.
Not only communications, but Sayre net worth at issue in motions hearing
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.
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.”
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.
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.
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.
** 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.
Warren County Board of Supervisors candidate raises questions about new fire & rescue station
FRONT ROYAL — Leslie Mathews, a lifelong Warren County resident and one of three candidates running to fill the county’s South River District Board of Supervisors seat in the November election, asked sitting supervisors to explain some of the details around a soon-to-be-built fire and rescue station.
“With your approval of the construction and the groundbreaking of the new $5.6 million Rivermont Fire Department, I have some questions,” Mathews said during the public presentations comment period of the supervisors’ June 18 meeting.
Mathews is referring to the new Rivermont Community Replacement Fire and Rescue Station, a 15,250-square-feet facility that will be constructed on a 5.7-acre parcel of land at the corner of Rivermont Drive and Stokes Airport Road near the Front Royal-Warren County Airport.
The Board of Supervisors voted unanimously at its March 5 meeting to award the construction contract to H&W Construction Company Inc., which bid at a total price of $5,602,198.25. The board members also authorized County Administrator Douglas Stanley to execute the contract on the county’s behalf and approved funding for the project, including 5 percent for contingencies amounting to $280,110.
The supervisors’ approval was subject to final approval of the project and site plan from the Federal Aviation Administration (FAA), which gave Warren County staff clearance for the project during the week of April 22, according to the Board of Supervisors’ May 7 meeting minutes.
Stanley explained during a Sept. 18 regular supervisors meeting that the well for the facility already had been drilled at the fire and rescue station’s planned location. And he reported that the county had submitted a Notice of Proposed Construction or Alteration to the FAA to approve the project due to the property being part of the Airport Layout Plan and having been purchased in the 1990s using Virginia Department of Aviation grant funding.
The Virginia Department of Aviation requires that the county reimburse the state 80 percent of the fair market value for the land. Warren County has requested that the department waive that requirement as the fire and rescue station will provide services to the airport. If the county’s waiver request isn’t approved, then Warren County may have to pay the state for the land, Mathews said, citing public reports.
Mathews then presented her questions to the Board of Supervisors and publicly for the record. She asked:
1. “Did Warren County receive permission from the FAA to remove this property from the airport’s layout plan?
2. “Did Warren County reimburse the state 80 percent for the fair market value of this property?
3. “What is the reimbursement costing the Warren County taxpayers?
4. “Is or was the reimbursement an additional amount to the $5.6 million?
5. “Was Warren County given the $40,000 from the Rivermont Fire Department when it recently sold its old location to a local builder?
6. “Why were Warren County tax dollars used in the summer of 2018 to drill a well on this property when the county did not even own it?
7. “Does Warren County now own this property lock, stock and barrel while the construction of the new Rivermont Fire Department is currently happening?”
“I’d like to have all seven questions answered,” Mathews added. “I would very much appreciate that. I’m very concerned” about this situation.
“We’ll make sure we get the answers to you. I’m not sure it will be this evening,” Board Chairman Daniel Murray responded.
In fact, the board did not answer her questions during the remainder of the Tuesday meeting, but Mathews passed along her email so that board members could respond to her directly.
In general, the new one-story fire station will have three drive-through bays, overnight accommodations, community meeting space — to house the Fork District polling/voting location, among other uses — and additional support space for the countywide fire and EMS response system and volunteer station needs.
The Warren County Department of Fire and Rescue Services and Rivermont Volunteer Fire and Rescue held a June 13 groundbreaking ceremony for the station, which has a projected life span of 50 years, according to fire officials, who said the joint capital improvement project has been developed to meet the critical needs of both the Rivermont community and to address the safety concerns of the deteriorating conditions of the existing station.
The needs of the fire and rescue operations also have outgrown the existing station, which is not adequate to support career staffing or overnight volunteer staffing activities, fire officials said.
The Royal Examiner’s camera was there:
McDonald attorney – ‘I don’t work for the Afton Inn’
Also in the Jennifer McDonald-Tom Sayre defamation case motions hearing Wednesday, June 19, Norma Jean Shaw attorney David Downes pointed to a Wednesday morning Josh Gully news story referencing an alleged November 2018 bank wire transfer payment of $10,000 authorized by McDonald to her attorney Lee Berlik’s firm.
Downes reference was made at the hearing’s outset shortly after 11:30 a.m., when Downes alerted the court that opposing “counsel may have a conflict of interest”. Downes explained by pointing to the cited reference to the Cherry Bekaert accounting fraud investigation finding of a November 11, 2018, wire transfer of $10,000 from First Bank & Trust to Berlik Law LLC; a payment authorized by McDonald as a payment to the “Afton Inn Attorney”.
Downes told the court that Berlik “can’t continue to use potentially stolen funds” to pay for his representation of McDonald” adding without suggesting Berlik had previously been aware he may have been paid with stolen funds – “He’s on notice”.
Following Wednesday’s hearing Berlik declined to address the now public Cherry Bekaert allegations against his client; however, outside the courtroom he did tell media present, “I don’t work for the Afton Inn.”
As noted in our above-referenced story the question about whether McDonald might be using allegedly embezzled EDA assets to pay for her civil cases legal representation was first raised by Sands-Anderson attorney Cullen Seltzer during a May 22 EDA civil litigation hearing. That discussion over the status of a plaintiff Discovery Motion request for information on McDonald’s payment of her civil legal fees – a plaintiff motion denied at the time by Judge Clifford L. Athey – came two days before McDonald’s arrest by the Virginia State Police.
The four felony charges McDonald was arrested on – two of Fraud-Obtain Money by False Pretenses and two of Larceny-Embezzlement – related to payments made to credit card companies utilizing what Afton Inn developer 2 East Main Street LLC and Cherry Bekaert assert were fraudulent invoices McDonald created to indicate payments for Afton Inn work.
After the document purported to be a closed-session resolution signed by the EDA Board of Directors authorizing a 2016, $2-million dollar transfer to its executive director to enact a land purchase was allowed to remain in evidence over the objection of EDA counsel Cullen Seltzer, McDannell was questioned about the document’s origin. After an initial hesitancy telling the judge he did not know the precise origin of the document, McDannell told the court “from my client – she gave me a pile of documents and it was in there with them.”
The following day surviving members of the EDA board whose signatures were on the questioned defense exhibit testified that while it appeared to be their signatures on the closed session authorization of the $2-million for a land transfer to be accomplished by their executive director, they had no recollection of signing such a closed session document.
And so the legal landscape upon which McDonald’s dueling defamation lawsuits with Tom Sayre, as well as her portion of the defense in the EDA civil litigation case seeking recovery of over $21 million in EDA assets, continues to shift seismically for her attorneys at nearly every courtroom step.
Warren County Board of Supervisors paves way for new fire and rescue training site
FRONT ROYAL — The Warren County Board of Supervisors on June 18 ignored local citizens’ concerns about the location of a new fire and rescue training facility, voting unanimously to approve a conditional use permit to allow construction at the site located off ESA Lane in Front Royal, VA.
“I just want to reiterate that we did not take this project lightly,” Warren County Fire Marshall Gerry Maiatico told the board and attendees. “This is a vital project. We are going to strive to be good neighbors to the surrounding properties.”
The Warren County Department of Fire and Services now will establish a live fire and practical training support building at the site, which is largely surrounded by single-family homes and trees.
Blaine Keller said the parcel isn’t the proper location for such a facility, which will be a two-story building with almost 2,200-square-feet of floor space that will include two live fire burn cells, according to the Warren County Planning Commission’s staff report.
Keller said that while the fire marshal has made a good case for the location, “this isn’t the place to build it,” he said, citing the location’s agricultural zoning.
According to the Warren County Zoning Ordinance, however, public protection facilities related to fire, police and rescue departments are an allowed use by a conditional use permit in an agricultural district.
“My biggest concern is with live fires,” said resident Kathleen Wisniewski. “What’s the guarantee that a fire won’t get out of control? It’s a heavily wooded area up there.”
And what about the smoke that people might see, asked Supervisor Linda Glavis, who represents the South River District where the facility will be built.
Maiatico said the department must follow federal guidelines for training and will be limited to the specific fuels that may be used, as well as how many times the department may conduct live fire trainings and for how long.
“The nearby woodland will serve to mask the smoke and will help dissipate it,” he added.
Mary Jones, another nearby resident, said she was “upset” about the planned facility.
“This is a residential area,” Jones said. “We are people who might be impacted because of our location and nobody informed us. I know we’ll be affected by construction, but mostly I’m concerned about the traffic.”
Jones asked the supervisors to explain how many more people would be travelling the neighborhood road while Glavis also asked about current uses of ESA Lane.
Maiatico said the department would “encourage trainees to carpool in an effort to minimize the traffic, but also “mostly for comradery” among the personnel travelling to the future training facility. He said efforts to limit siren blowing also would be made “just to be courteous” to the nearby residents.
“Obviously the fire department needs a place to practice, but in this case you have to respect the citizens,” local Paul Gabbert told the supervisors. “They have to deal with the smoke and traffic … and they shouldn’t be put through something like this. You should find another place for them to do this.”
But that’s not the way the votes fell.
The supervisors agreed with Maiatico that it’s no longer feasible for the fire department, which must provide initial training and continuing education to volunteer and career first responders, to send members to a rented Shenandoah County location because it currently lacks the ability to provide live fire trainings locally.
The additional travel time to that facility for training has become problematic for the department, Maiatico said, and takes valuable personnel out of the area, decreasing the number of first responders available locally for an emergency.
Maiatico also said the location is attractive to the fire department because there’s a roadway and water and septic already in place, “which is a significant cost-savings for taxpayers.”
The fire department already utilizes three abandoned classroom trailer facilities on the site that once belonged to the former Warren County Public School Alternative Education Facility where it has offered dedicated classroom and support space for its Warren County Department of Fire and Rescue Service Training and Continuing Education Center since 2016.
During a roll call, the board members each said “aye” after Supervisor Tom Sayre, vice chairman of the board, moved to approve the conditional use permit and Glavis seconded the motion.
The Royal Examiner’s camera was there:
Brown, Harold appointed to fill EDA Board of Director vacancies
FRONT ROYAL – After nearly three months and 19 interviews, six conducted in closed session prior to Tuesday night’s meeting, the Warren County Board of Supervisors filled the EDA Board of Directors vacancies left by the resignations of former Chairman Greg Drescher and Ron Llewellyn, effective March 23.
Those unpaid volunteer seats were filled by Jeffrey Brown and Greg Harold by a unanimous vote on a motion by Tony Carter, seconded by Linda Glavis near the end of the June 18 meeting.
Harold was present and rose during the second public comments portion of the agenda at the meeting’s end.
“I want to thank the board and chairman for the nomination to the EDA Board of Directors. I look forward to the opportunity; I’m very excited about the opportunity but I’m not saying it’s going to be an easy road. I believe it will be a long road, I believe it will be tough,” Harold said of restoring the kind of operational order and public faith the community has had in the EDA in the past.
During a brief conversation with Royal Examiner during the closed session discussion of the EDA and other board or commission appointments, Harold said if appointed he would not be afraid to ask the hard questions he felt needed asking, of either his new EDA colleagues or the county board that appointed him.
According to his business card, Harold is a Class A contractor and OSHA 30 Project Manager. He said that his business is conducted out of the Warren County area, so he perceives no potential conflicts of interest between his professional and new local economic development role.
Following his appointment, Harold said he would be willing to sit down for a Royal Examiner video interview on his perceptions of the current EDA situation and his hopes for the EDA’s future as a part of its board of directors.
Brown did not appear to be present for the announcement of his appointment. Royal Examiner will seek out contact with Brown in order to allow him to share his professional background; perceptions on the state of the Front Royal-Warren County Economic Development Authority and his hopes for its future, as well.
Despite the unanimity of the vote appointing Brown and Harold, it did not come without some preliminary drama. Prior to the vote appointing Brown and Harold, Board Vice-Chairman Tom Sayre made a motion to appoint Mark Egger to the EDA board. That nomination of the long-time EDA and County Board critic brought a murmur among spectators and one quick, somewhat suppressed clap of approval. Egger has picked up the baton of his daughter, former Front Royal Town Councilwoman Bébhinn Egger’s prescient 2016-17 criticism of EDA programs at the base of the current $21.1 million civil suit filed March 26 on the EDA’s behalf by the Richmond law firm of Sands-Anderson.
However, Sayre’s motion died without a second, as did Board Chairman Dan Murray’s subsequent nomination of attorney David Silek.
Earlier in the day Board Clerk Emily Mounce explained that the County views resumes included in board appointment applications as personnel files not open to public disclosure. She is correct in that being a long-held County policy, though one that likely will stoke public criticism of a lack of transparency in County operational oversight of the EDA in the wake of the current financial scandal.