According to documents in the Warren County Circuit Court Clerk’s Office, on Monday, September 25, legal counsel for HEPTAD LLC (Heptad) filed a civil action against the Front Royal Town Council for its August 28 rejection of Heptad’s Proffer Amendment proposal to facilitate the long-floundering Swan Estates residential development. That development on a total of 98.25 acres to the west of Leach Run Parkway is for a now-reduced number of homes on “approximately 86 acres” — 335 units, down from 450 with all multi-family units eliminated, was cited in the civil complaint. The Heptad/Swan Estates residential development project was broached in 2011, with initial proffers offered and placed in 2012, according to references in the civil complaint.

But focusing on the August 28, 2023, council rejection of Heptad’s proffer amendment proposal, the company is seeking damages of $6 million as a result of a divided town council’s 4-3 vote to deny the amended proffers. Mayor Lori Cockrell cast the decisive tie-breaking vote for the denial of “Skip” Rogers motion to approve the proffer amendments. Voting with the mayor for denial were Melissa DeDomenico-Payne, Amber Morris, and Josh Ingram. Voting for approval with Rogers was Vice-Mayor Wayne Sealock and Bruce Rappaport.

Graphic accompanying HEPTAD LLC proffer amendment submission showing parameters of Swan Estates parcel. Locations of WCHS to left, WMH at right-center, and WCMS upper right, are shown. Below, the Front Royal Town Council ponders what it has been shown regarding the Heptad Proffer Amendment proposal to update what was originally agreed to in 2012, prior to construction of Leach Run Parkway. Royal Examiner File Photos

The bottom line in the civil complaint filing on the first page states: “Heptad maintains that the Council’s denial was arbitrary, capricious, unreasonable, unconstitutional and in violation of Virginia law.” Heptad’s counsel cites six counts justifying its damages claim against the town council as a whole entity. It is also noted that Heptad’s contract with Van Metre Communities LLC to purchase the property for development fell through as a direct result of the proffer amendment denial.

Count 1: In denying the Amended Proffers, Council refused to relieve Heptad of the burden of an unconstitutional condition in violation of Va. Code Ann. 15.2-2208.1;

Count 2: The Council’s denial of the Proffer Amendment was a violation of Va. Code. Ann. 15.2-2298, in violation of the Dillon Rule;

Count 3: The Council’s request that Heptad relinquish its property rights to credits as a condition of amending the 2012 Proffers violates Plaintiff’s vested rights;

Count 4: The denial of the Proffer Amendment is a violation of Va. Code Ann. 15.2-2303.4;

Count 5: Declaratory judgment that the monetary contribution remaining in the 2012 Proffers constitutes an unconstitutional condition. Of this count, it is added: “The failure or refusal to approve the 2023 Proffers has left Heptad subject to the 2012 Proffers, which impose an unreasonable and unconstitutional condition on the development of the Property that remains a burden on the Property, specifically an unconstitutional monetary contribution toward the cost of construction of Leach Run Parkway that must be removed.” A case of the BOS of Albemarle Co. v. Route 29, LLC is cited in support of this count.

Count 6: Violation of rights protected by the United States Constitution in violation of 42 U.S.C. 1983 because of the monetary contribution remaining in the 2012 Proffers constitutes an unconstitutional condition.

Heptad also alleges inaccurate information or flawed interpretation of information being cited by council members during the final public hearing phase and council discussion leading up to the split vote of denial.

And we’ll let the lawyers take it from there. The Prince William County-based law firm of Walsh, Colucci, Lubeley & Walsh P.C. submitted the 28-page civil complaint on behalf of HEPTAD LLC. Attorneys John H. Foote and Matthew A. Westover appear to be the involved counsel, with Foote signing the civil complaint submission above his and Westover’s contact information.

As noted in the Royal Examiner’s story on the August 28 vote referencing the Town meeting video: “The Swan Farm proffer amendment public hearing begins at the 2:05:47 mark of the linked Town video; the vote is called at 2:59:15 mark, with the deadlock reaching the mayor at the 2:59:47 mark. (The mayor’s) vote is cast at 3:06:20, ending the discussion – for now.”

“For now,” indeed. If we recall correctly, prior to casting her tie-breaking vote, Mayor Cockrell commented that certain past proffer-related actions or inactions by Heptad left her with “heartburn” on the proposed proffer changes. Wonder how that heartburn is doing now.

Split Town Council Denies Swan Estates Proffer Amendments, Hears Overwhelming Citizen Support for Revitalized Youth Center

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(UPDATE: According to the 10th Western District of Virginia federal website, Judge Elizabeth K. Dillon has set aside the week of Monday, October 23, through Friday, October 27, for the criminal trial of former FR-WC EDA Executive Director Jennifer McDonald to resume and run to conclusion. As reported below, involved attorney expectations are that the trial could be turned over to the jury for deliberations on the 34 criminal indictments the defendant faces within two to three days once the trial resumes. The prosecution will call its 57th and final witness when the trial is reconvened. The defense is then anticipated to only call one or two witnesses before resting and heading the trial into closing arguments.)

After a second week (Sept. 19 to 22) and an additional day, Monday, September 25, lost to the “unexpected health issue” or “unexpected circumstance” referenced at a motions hearing last week, the federal criminal prosecution of former Front Royal-Warren County Economic Development Director Jennifer McDonald was again put on hold on Tuesday, September 26. And with the defendant again the only principal absent at the defense or prosecution tables, and no court official and none of the 15 jurors and alternates missing, the smart money “in Vegas” or at Charles Town’s Hollywood Casino is on McDonald as the focal point of that unexpected “health issue” or “circumstance.” In fact, it might be recalled that in the wake of one of her arrests, while her prosecution was initially at the state level, McDonald had to be transported from jail to a hospital for medical care, believed to be heart rate or blood pressure related.

Mug shot of Jennifer McDonald following one of her two summer of 2019 arrests following indictments at the state level. She was hospitalized for a time following one of those arrests. Royal Examiner File Photo

In fact, during an 8:30 a.m. motions hearing, defense counsel forwarded a motion for a mistrial due to the repeated delays and uncertainty on a time frame moving forward at trial. Lead prosecuting attorney Sean Welsh countered the mistrial argument, citing case histories and circumstances of longer delays in which mistrial motions were denied. Welsh also told the court he didn’t feel the defense had “proved anything beyond speculation” to justify a mistrial, including any “cumulative” negative impact on jurors from delays.

After the hearing was closed to the media or the public several times to let personal variables of involved parties not be made public, Judge Elizabeth K. Dillon posed the alternative of “briefly suspending the trial” and resuming it as an alternative to a mistrial. Dillon said she would take the defense mistrial motion “under advisement.” However, the effort to pin down a coming week in which to continue the trial, which appears to currently be delayed for an unknown amount of time, seemed to indicate the judge preferred the alternative to declare a mistrial.

Prosecutor Welsh pointed out how close the trial likely is to being completed and handed over to the jury for deliberation. He noted the prosecution team had called 56 witnesses to the stand, with just one remaining to be called. He forecast that it now seemed the defense would call only one witness, with closing arguments possibly coming within two days. The defense witness list has been cited at two, with a third potentially to be added. The defendant is not anticipated to take the stand.

The initial motions hearing convened at 8:30 a.m. was recessed at 9:34 a.m. until 11 a.m. when the jury was instructed to report to court Tuesday. Reconvened at 11 a.m., the hearing was again closed for a time as the court queried jurors on their prospective plans for the coming weeks under consideration for restarting the trial without the current day-to-day uncertainty it would proceed. A time frame of two to six weeks was cited for reconvening the trial if a decision to suspend was reached. However, the prosecution wondered if additional relevant information might not be helpful in pinning down how soon a restart might be feasible. When Welsh proposed such input, possibly by subpoena, as early as the following day, Judge Dillon called that scenario “highly unlikely.” The court adjourned at 11:30 a.m. with no clear path forward apparent.

So, a decision on how this trial will proceed and when, and possibly even if it will proceed, is currently on hold pending additional information to be received by the court. And apparently, as noted in the above “Update” that information was received late Tuesday afternoon, September 26, with the trial now poised to resume on Monday, October 23, at 8:30 a.m.

As previously reported, after inheriting the case from two state prosecutors’ offices on August 25, 2021, a federal grand jury handed down 34 federal criminal indictments on a variety of charges, including bank fraud, wire fraud, money laundering, and aggravated identity theft against the former FR-WC EDA executive director.

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On Monday, September 25, 2023,  at 7 p.m. at the Warren County Government Center, the Front Royal Town Council met to vote upon issues that included the number of chickens that residents are permitted to keep within town limits as well as a vacation of rights-of-way and sale of that access, parallel in part to Grand Avenue.

Front Royal Town Council meets on Monday, September 25, 2023

Front Royal student Mia Miller leads the gathering in pledge of allegiance

After Front Royal student Mia Miller led the gathering in the pledge of allegiance, Mayor Lori Cockrell presented an award to departing public servant Darryl Merchant for his service and acknowledged B.J. Wilson for his excellent work as the Town’s finance director. Then, the council members moved on to address an ordinance to amend the town code related to urban agriculture, specifically the keeping of chickens within town limits. Among other adjustments, it would change the limit on ownership of chickens from six to ten, based on the square footage of the coop and run space.

Council recognizes Darryl Merchant for excellent service as he departs from the role he has played

Mayor Lori Cockrell presents Merchant with an award

Speaking on behalf of her operation, Barbara Martin briefly addressed the council, saying, “I have been inspected and cleared for the six I now have.” But she lamented that under the present rule, she cannot free range her “girls” as she would like but must keep them “constantly confined.” After Martin spoke, Amber Morris moved that the ordinance amendments be denied. There was no second, and the motion died. Then Duane Rogers moved that the ordinance be accepted, and the motion was seconded by Melissa Dedomenico-Payne.

Barbara Martin, owner of six chickens, speaks in favor of the amendment to the town code that would allow up to ten

Morris explained her position. “This was an initiative of a former council; my former councilmember Scott Lloyd dedicated a lot of time and energy to this initiative, and I promised him that I would continue to bring it back forward. As a rural agricultural town, I think that it’s extremely important to protect the liberties and freedoms of families who wish to use urban agriculture to supply their family with a food source.” Because of the ongoing demand for eggs and because of the available space for this enterprise, Morris thinks it would be advantageous to allow urban agriculturalists the opportunity to keep more chickens; however, because of the regulations attached to the proposed amendment, she feels that the problem would not be solved and people who have already gone through the process of getting approved for their operations would find themselves suddenly in violation of new rules. She proposed that the issue be sent back to a work session.

Bruce Rappaport described himself as being on the other side of the pendulum from Morris. He thinks six chickens are “quite enough.” He went on to say, “We’re becoming more urban than rural.” Joshua Ingram echoed Morris in recommending a return to the work session for this agenda item. He cited the current limitations on free-range potential and consideration of all the nuisances inherent to having chickens confined in one spot. Apparently, there are already limitations in the code, and at least some of the regulations under the proposed amendments would supply additional limitations. While the number of chickens would increase, those owning chickens would be unable to run them as they wish.

Under a substitute motion, the urban agriculture issue was postponed for discussion at a work session on November 6, 2023. Only Rappaport and Rogers voted against it. A motion to vacate and sell a public right-of-way passed unanimously, surrendering a portion of North Street as well as a portion of an alley between Orchard Street and Grand Avenue, after which the council heard public comments; councilmembers were then given the opportunity to make general comments followed by a report from Mayor Cockrell, whereupon council passed the consent agenda without discussion and proceeded to go into closed session to discuss EDA litigation.

Council recognizes B.J. Wilson for excellent work as finance director

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On Tuesday, September 19, at 7 p.m. at the Warren County Government Center, the Warren County Board of Supervisors gathered to address several agenda items, one of them being a fully packed community participation hour in which twenty-two speakers spoke concerning the ongoing question of whether Samuels Public Library should be fully funded; with a three-minute time limit on each speaker, only one person spoke in favor of not fully funding the library.

The Warren County Board of Supervisors meets Tuesday evening. Photos Brenden McHugh

Opening the meeting and having discussed it in closed session, the board added to its agenda a temporary funding agreement regarding an appropriation of $256,000 to Samuels Public Library to cover the second quarter of Fiscal Year 2023/24, ending December 31. On a motion by Jerome Butler, seconded by Cheryl Cullers, the board voted unanimously in favor of the continued operational funding of its contracted public library.

The board then proceeded to listen to the community on the library matter during Public Comments. Many of the speakers referred to the 1st Amendment of the U.S. Constitution, arguing that the freedom to read what one pleases and to see on library shelves books that represent LGBTQ+ themes is a constitutional right. Some went as far as to say that the absence of such material could be alienating for children who identify with LGBTQ+.

Of all the impassioned speeches in support of the library and its full funding, the most impassioned was delivered by Sarah Downs of Defense for Democracy. “Why are you okay with politically posturing to extremists?” she asked the board, “And how much are you willing to sacrifice for their bigotry?”

She addressed each member of the board individually. She asked Walter Mabe, whom she perceives as having assumed a position of neutrality: “What about discrimination is neutral?” She expressed astonishment to Delores Oates, whom she perceives as at least claiming to be an advocate of “mothers” but has, in Downs’ eyes, aligned herself against the library, which she believes supports a majority of the county’s mothers. To Vicky Cook, she posed this question about accessing a past meeting: “Why are you running to and from your car? What are you running from? You say you want open discussions, but then jet on an open meeting.” She asked Cheryl Cullers: “Have you been complacent to the discriminatory actions of your fellow board members? We know you support the library, but your silence on the actions of fellow board members speaks volumes.” Finally, to Jerome Butler, she said: “Well gladly, I don’t have any questions. We know who you are. Someone who actively advocates and supports discrimination.” She assured the board that they would be held accountable at the polls.

Sarah Downs with Defense of Democracy speaks to the board.

Interviewed after the meeting, Sarah Downs described Defense for Democracy as “a non-partisan organization that is working to ensure that extremism doesn’t take root in our county.” Keeping public systems intact, like public school systems and public libraries, is their focus. Being present at meetings like the one held on Tuesday evening is important to them. During the interview, she likened the board’s attempt to control the appointment of library trustees to the communism of Red China, and near the end of the interview, she quoted Psalm 27: “Whom shall I fear?”

Each board member had the opportunity to share his or her thoughts in response to the community participation segment. They described their ongoing efforts to address the dispute over content at Samuels and funding for the library. “I have not spoken out in public because I’m listening, and I’m trying to respond individually,” Cheryl Cullers remarked. She also remarked that Jerome Butler submitted two reconsideration requests in which he checked the box for organization and filled out as Warren County Board of Supervisors. “I was and am continue to be upset and angry that you would do that,” Cullers continued. “You did not have my permission and did not speak for me on this matter.” She went on to lament the division this dispute has created in the community. “Both sides own their own share of disrespectful behavior that is not conducive to this process. Let’s all take a breath, please, and let both boards work together for a contract that is acceptable to both.”

Delores Oates spoke in favor of the changes that Samuels has made and said, “I fully support parental rights and ensuring that parents alone make decisions on raising and educating their children.” She described a loophole in the Virginia state code that forbids “obscene content” unless the body in question is a library, a museum, or a school. “It is my plan to have that as my first piece of legislation I carry, to remove this exception and protect our children,” she said, referring to her campaign for a state delegate’s seat in the November election.

The board addressed several other agenda items and adjourned.

Click here to Watch the Warren County Board of Supervisors Meeting of September 19, 2023.

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The morning of September 20, 2023, 40 years to the day after he was gunned down from behind near the intersection of Villa Avenue and Sixth Street as he was headed to what would have been a routine day of court testimony in cases he was involved in, Front Royal Police Sgt. Dennis M. Smedley’s memory was invoked in a gathering of Town officials and first responders from the Town, County, and State, along with Smedley family members on North Commerce Avenue.

The occasion of that gathering was the naming of the North Commerce Avenue bridge over Happy Creek just north of its intersection with East Main Street for Sgt. Smedley. It was an emotional tribute to a local first responder lost in the line of duty to a murder that remains unsolved to this day. We spoke with Sgt. Smedley’s sister, South River District Warren County Supervisor Cheryl Cullers, following the ceremony as she mingled with family members, including brothers Tim and Todd Smedley, her husband Steve Cullers and son David, and sister-in-law Cathy.

An FRPD Honor Guard presented the colors, setting the official ceremony in motion 40 years to the day of Sgt. Dennis Smedley’s murder. Smedley family members make their way forward, and further below, the State Police have joined the crowd behind FRPD Chief Kahle Magalis in left foreground. Royal Examiner Photos Roger Bianchini

Of the remembrance attended by FRPD members present and past, WCSO personnel, as well as County Fire & Rescue members, and State Police, Cheryl told us, “It’s important, even for other law enforcement personnel, to know what you dedicate your life to, that people appreciate it enough to do something like this. That we watch over and respect them and help them protect us.”

We asked Sgt. Smedley’s sister if it haunted the family that their brother’s murder at age 28 remains unsolved all these years later. “I can’t speak for my brothers, but I put it in God’s hands,” Cheryl told us after an emotional pause.

An FRPD Honor Guard presented the colors to set the dedication in motion. Mayor Lori Cockrell and Vice-Mayor Wayne Sealock, himself a retired first responder whom the mayor acknowledged as bringing the bridge-renaming dedication idea to council, offered keynote comments. “I wish this day didn’t have to happen,” Mayor Cockrell observed of the bridge renaming to the lost FRPD sergeant. She offered hope that the newly placed Smedley Bridge sign would help passing drivers “to think about the life, his life, and what he sacrificed for our community.”

‘I wish this day didn’t have to happen,’ Mayor Lori Cockrell said of the personal sacrifice at the root of honoring murdered FRPD Sgt. Dennis Smedley. The mayor credited Vice-Mayor Wayne Sealock for bringing the Smedley Bridge re-naming idea to council. Below, the vice-mayor read council’s Resolution of support of the bridge initiative approved on Aug. 28.

Following the mayor’s comments, Vice-Mayor Sealock read the town council Resolution dedicating the bridge to Sgt. Smedley’s memory.  Click here to read.

WCSO’s Roger Vorous, back to the camera, gave the invocation to a solemn crowd gathered in memory of FRPD Sgt. Dennis Smedley, a brother, a son, a friend, and an officer in service to his community.

A county fire engine passes in acknowledgment of the ceremony. And yes, there is a bridge artfully built into the road across Happy Creek’s shift eastward before continuing its path north toward the 8th Street low-water bridge and beyond.

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(Writer’s Update: On Wednesday, Sept. 20, for the second consecutive day the federal criminal trial of former FR-WC EDA Executive Director Jennifer McDonald was cancelled. This time there was no hearing to discuss reasons or other procedural matters as there was the previous day. One might guess the cause was a continuation of the “unexpected health issue” or “unexpected circumstance” mentioned at hearing the previous day, as reported below. Further information will be reported as it becomes available. And in a later update, the trial has been cancelled for the rest of the week. It is scheduled to resume Monday, Sept. 25 at 8:30 a.m.)

With 10th Western District of Virginia Federal Court Judge Elizabeth K. Dillon’s 9:30 a.m. arrival, court was convened on schedule Tuesday, September 19, in the criminal trial of Jennifer McDonald related to the estimated $26-million Front Royal-Warren County Economic Development Authority (FR-WC EDA, EDA) “financial scandal,” circa 2014 to 2018. As has been reported, after inheriting the case from two state prosecutors offices on August 25, 2021, a federal grand jury handed down 34 federal criminal indictments on a variety of charges, including bank fraud, wire fraud, money laundering, and aggravated identity theft against the former EDA executive director. Those charges relate to the alleged unauthorized transfer of EDA assets to McDonald’s own personal benefit, as well as that of alleged co-conspirators.

But rather than starting the trial on the second day of a week in which it has been forecast the trial could be coming to a fairly rapid conclusion with closing arguments by weeks end, the judge was informed that an unanticipated issue would put the trial on hold that day.

An “unexpected health issue” was referenced by lead prosecutor Sean Welsh as the reason for what apparently will be a one-day delay of the trial. However, defense counsel told the judge that the jury had been told an “unexpected circumstance” would be the reason they would not be needed at court that day. It might be noted that the lone missing person at the prosecution or defense tables during this discussion appeared to be defendant Jennifer McDonald.

In the defendant and jury’s absence several procedural matters were broached for additional discussion. One was review of submitted jury instructions. Another was gaining defense approval of allowing a prosecution witness’s testimony that had been scheduled to be heard Tuesday, to be submitted alternately without the need of her returning the following day from her Virginia Beach home to testify. It was explained her testimony would be fairly brief and was to be introduced to allow a related piece of evidence to be admitted as a prosecution exhibit (why does that sound familiar?). A final matter discussed before court recessed was the possible addition of a third defense witness identified as “James Woods”.

Following the court recess this reporter and another present (see you tomorrow, Alex?) tried to place the name James Woods. All we could come up with was the actor. — Wouldn’t want to miss THAT testimony, “Woods” we?

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