After hearing 40 minutes of oral arguments and responses to his questions regarding the dueling perspectives presented by attorneys to justify or deny revisiting his April 7 ruling that Jacob Meza could be reseated on the Front Royal Town Council four days after the term he chose not to run for reelection to expired, Judge William W. Sharp took what he heard Tuesday afternoon, May 25, under advisement.
His ruling, which he noted would be given in writing unlike his verbal decision of April 7, will determine whether the Town and Meza’s defense counsel’s demurrer for dismissal of the plaintiff removal petition remains upheld by the court or will face re-argument. Heather Bardot appeared as counsel for the defendants – neither Meza nor anyone from the Town was present for the hearing. David Downes represented plaintiff Paul Aldrich, a town citizen who also applied to fill the vacancy created by Chris Holloway’s election to mayor in November 2020.
Bardot began by telling Judge Sharp the defense opinion was “We don’t think we should be here” retreading ground she believes has already been adequately covered by both sides in the courtroom.
Downes countered that he disagreed that all aspects of core issues had been settled. He opened his case for revisiting the court’s initial ruling by pointing to one pivotal issue – Is the office of a councilman under the jurisdiction of council collectively?
Plaintiff counsel added that the 1937 Town Charter where the disputed chapters and sections reside, must be read in the context of its entirety to root out issues of vague or cloudy language. Otherwise he reasoned that “14-year-old convicted felons, living out of town” could be appointed to council. Downes said what began as a simple argument rooted in Charter Section 47 had been complicated through “creative” defense arguments rooted in vagaries of language.
Downes reasserted the plaintiff contention that Town Charter Section 47 prohibits “appointment or election” of former members of council by council for one year after their term in office expires.
“No member of the council of the Town of Front Royal shall be appointed or elected to any office under the jurisdiction of the council while he is a member of the council, or for one year thereafter,” the relevant Section 47 passage reads, continuing to note for an unexplained reason an exception for the position of Town Treasurer. On Tuesday Bardot pointed to the absurdity of the above wording’s implied notion that a council person would be “appointed” to a council seat while they were a member of council. Plaintiff counsel countered that the wording referred to two different actions, appointment to a staff position while a counsel member or reappointment to a council seat after leaving council.
In her Demurrer filing for dismissal, Bardot pointed to Section 6D and related wording on filling council vacancies, such as the one created by Councilman Chris Holloway’s November 2020 election to mayor. “The council may fill any vacancy that occurs within the membership of council for the unexpired term, provided that such vacancy is taken within 45 days of the office becoming vacant,” Section 6D states. No reference to a one-year hiatus per appointments is made here, Bardot noted.
Citing the inclusion of the words “appointed or elected” Judge Sharp’s initially ruled that Section 47 applied only to paid staff appointments, not council member appointments. Sharpe said it seemed clear that the Town Charter’s intent, dating to its 1937 adoption, was not to prevent council members from running for re-election for a year. So, the court sided with Bardot’s stance for the defense that Sections 6 and 9 of the Charter were the applicable sections on council appointments, rather than Section 47.
In revisiting these issues Tuesday afternoon, Downes said it was “dangerous to take one word out of context” in trying to decipher the intent of town fathers 84 year ago. That intent with Section 47’s application to council appointments was to avoid the appearance or fact of political cronyism in council vacancy appointments. Downes raised the specter of Meza’s decision not to run for re-election after a sometimes controversial final two years in office revolving around a vote in support of his employer Valley Health’s $60-million loan application for new hospital construction through the Town-County EDA after initial potential conflict of interest recusals from that discussion.
Rather, Downes told the court Meza cast his electoral future in the hands of his political allies within council, all save one who are fellow county Republican Committee members. Avoiding such appearances of cronyism was the intent of the town fathers who authored the charter in 1937, Downes asserted, as he had on April 7.
Sharp said he remained aware of the desire on both sides to have the matter resolved in a timely fashion and said he would strive to accomplish that with his written ruling this time around. In his April 29 letter to the attorneys authorizing Tuesday’s oral arguments for reconsideration, Judge Sharp explained, “Not a small part of my decision to enter the stay order, and give one last chance for oral argument, is my realization that I gave a very poor articulation of my reasons for my original decision, and I do not want to make that mistake again. It is therefore my intention to give a written explanation of my decision, whichever way it goes, in which my words are more carefully expressed.”
Stay tuned for what may or may not be the final chapter in the Jacob Meza council appointment drama as we await news of Judge Sharp’s written ruling.
Town Council doesn’t look this opioid-negotiated gift horse in the mouth
With no public hearings scheduled for its meeting of Monday, November 22, the Front Royal Town Council faced a 10-item Consent Agenda and three “Business Items” that expanded to five with the addition of one item – Purchase of Rebuilt Transformers, Energy Services Department – and the removal of one Consent Agenda matter to “Business” discussion. The latter was a no-brainer vote on participation in Virginia’s share of a national Opioid Settlement Agreement and Memorandum of Understanding (MOU) about that agreement. Councilman Gary Gillespie, who has been involved in anti-opioid efforts locally, asked to pull the item to allow some comment on his excitement at news of the Opioid Settlement Agreement and the potential impact of the Town of Front Royal’s share of the state portion of that settlement.
The resolution essentially states that you as a municipality will abide by the rules established within the Virginia State Governmental apparatus to distribute Virginia’s share of the proceeds negotiated or ruled liable against corporate entities found to have profited off the promotion and manufacture of, and distribution of super-strong opioid drugs that have led to so much addiction and overdose deaths nationwide.
The staff agenda summary states that “settlement proposals have been negotiated that will cause the entities of McKesson, Cardinal Health, AmerisourceBergen, and Janssen” – and the Resolution adds “their related corporate entities” – “to pay up to $26 billion nationwide to settle claims against them”. And while the MOU is still being formulated in the Office of Virginia Attorney General Mark Herring in conjunction with establishment of a Virginia Opioid Abatement Authority to oversee distribution of the Virginia Opioid Abatement Fund revenue that comes the state’s way, both the Settlement Agreement and MOU must be signed by municipalities by January 2, 2022, to qualify for participation.
An online search about the settlement led to a description of McKesson, Cardinal Health, and AmerisourceBergen as “the three largest pharmaceutical distributors” and noted that involved drug manufacturer Janssen’s parent company was Johnson & Johnson.
Also under “Business Items” council referred consideration of short-term tourist rental code “text amendments” to the planning commission for review and recommendation; and approved a Valley Health request for a 5-year-extension of a stormwater easement at its old Warren Memorial Hospital/Lynn Care location. Last week Valley Health announced the pending sale of the old WMH/Lynn Care site to Hill Valley Health Care, a company that a Valley Health Press Release described as specializing in “skilled nursing, rehabilitation and long-term care” which “owns and operates facilities throughout Virginia” including in Luray, Warrenton and Winchester.
Staff COVID bonuses approved
Approved without discussion as part of the Consent Agenda was a Fiscal Year-2022 Budget Amendment of $476,617 and Interfund Budget transfer of $216,635 that will enable a one-time employee bonus of $3,096 of which the employee will net about $2,000 after taxes and deductions. The bonuses are for work through the COVID-19 Coronavirus pandemic, which council spent considerable time debating the necessity or legality of private, public, and health care sector COVID-19 vaccination mandates. In the end council rejected approval of a code forbidding private and health care sector vaccine mandates, but did not issue a mandate for its own employees.
In fact, prior to the Consent Agenda vote Mayor Holloway reiterated a point (at 23:40 mark of video) that he would not sign an order rescinding the non-vaccination status of Town employees were a federal mandate for public employees to be approved and handed down to municipalities. Having made his point, the mayor then acknowledged the pandemic bonus’s inclusion in the evening’s Consent Agenda.
Following Mayor Holloway’s comments, Councilwoman Letasha Thompson noted that insurance coverage cost for employees who are not vaccinated against COVID-19 is higher than for vaccinated employees. She suggested council and staff start looking at ways to put money aside to cover those additional costs across the board, rather than offer individual lower rates to vaccinated employees. Then on Thompson’s motion, seconded by Vice-Mayor Cockrell, the nine-item Consent Agenda passed on a 6-0 roll-call vote.
Also on the Consent Agenda was an FY-22 Budget Amendment of $2,090 to allow acceptance of grant funds from the Virginia Department of Forestry for the placement of Playground Shade Trees at Gertrude E. Miller Community Park; another budget amendment of $2,690 to allow acceptance of a $2,690 Local Law Enforcement Block Grant from the Virginia Department of Criminal Justice Services; a waiver to allow Boy Scout Troop 52 to sell Christmas Trees without payment of a License Tax; approval of another one-year extension on submission of a development plan by HEPTAD; and several matters regarding contracts and proposals related to mandated work on the Town’s wastewater treatment and Sanitary Sewer I&I Abatement work, the former involving a WWTP Centrifuge Conversion Engineering Report at a cost of $33,000; the latter involving a CHA consultant-recommended subcontract with Hydrostructures at a cost of $130,000.
At the meeting’s outset council was slated to recognize the achievement, service and contributions of three people, two staff, one retiring and one back from graduating the Southern Police Institute, and one apparently retiring member of the Board of Architectural Review (BAR). However, only one was present leading to suggested deferred recognitions for retiring Public Works Street Division Sign Tech “Billy” D. Sears and BAR member Andrea White, the latter whose deferred recognition may have occurred with approval of the nine-item Consent Agenda that included a Resolution acknowledging White’s term of service on the board tasked with preserving an architectural standard for the town’s Historic Downtown Business District – that recognition apparently still coming in her absence.
That left the recognition floor to Front Royal Police Captain Crystal Cline after her presentation to council by FRPD Chief Kahle Magalis. Cline described the benefits of her recent months at the Southern Police Institute in preparing officers for myriad issues facing law enforcement on a variety of fronts including intersecting administrative functions, officer retention and liability, procedural issues on street patrol, among others. Welcome back, Captain Cline; and good work Mr. Sears and Ms. White.
Town re-releases planners investigative report with verified ‘final’ version
The public review of a Front Royal Planning Commission investigative report prepared by Town Attorney Doug Napier on the approval process of a non-conforming sub-division request submitted by Mayor Chris Holloway’s construction company got an update Monday, November 22. That update addressed confusion expressed at the town planning commission meeting on November 17, just over two hours after the report’s release through the town administrative office.
As reported by Royal Examiner reporter Stephen Sill, the confusion revolved around which of several drafts of the report had been authorized for release that day, as well as whether the planners had the final draft before them that evening for approval. The planners eventually deferred action on the report till its December meeting to assure the final version was being voted on.
The November 17 report released at the authorization of the town council according to Town Manager Steven Hicks was dated October 7, 2021. But that version did contain what appeared to be two red color-coded wording corrections and several code passages highlighted in yellow, the latter would appear for emphasis as opposed to being corrections. At the planning commission meeting of November 17, the town attorney cited a final version dated October 21.
The report released Monday through Town Manager Steven Hicks Office is dated October 7, but with an “updated October 21, 2021” added in parenthesis and a handwritten notation at the top of the front page “FINAL” signed “Douglas W. Napier”. The color-coded corrections and highlights are gone, but the two grammatical corrections on the front page and page 5 are incorporated into the text without the color highlights, as is explained in the accompanying press release.
The 20-page report is accompanied by another one-page press release from new Town Public Information Office Director Joanne Williams of Williams Media LLC based in Richmond. The first three paragraphs focus on the above-referenced confusion over which version of the report had been released, concluding with this reference to Town Attorney Napier’s subsequent communication to council:
“As a result of much confusion on what appears to be various versions of the report circulated, the Town Attorney issued an email to Town Council members on November 19 stating, “I located the October 21 report. The changes are two, extremely minor, one is putting a space between two paragraphs, the other was cleaning up the language in the first report wherein it stated “CORRECTION” so that the corrected language is now simply an integral part of the report. I have marked one copy of the October 21 report to show the changes from the October 7 report and have also sent a clean copy of the October 21 report. The changes are so minor and technical that they were hardly worth making …” Napier observed.
And it does appear the one substantive grammatical change, color-coded in the original release on page 5 simply moves the word “not” from one location in a sentence to another, not changing the substance of that sentence: “CORRECTION: Another meeting on March 30, 2021, with Mr. Wilson was held to discuss what was needed for Mr. Holloway to build a private street on this property he was purchasing from the Town and re-subdividing. Mr. Wilson did not (removed) advise Mr. Holloway or the Town Manager that a “special use permit” was NOT (added) needed.”
And the press release restates the November 17 assertion that while fast-tracking of the application by the town manager, occasionally under the watchful eye of the subdivision applicant Mayor Holloway, was engaged in leading some staff to feel pressured to sign off on immediate approval without checking zoning codes, no wrongdoing occurred.
And as noted in our original introduction to the November 17 release, the town attorney did point out of the staff “fast-tracking” of the application: “It should be clearly and unambiguously stated that there is no current Town Code provision that states this it is impermissible for the Town Manager to do this, or for a Mayor or Town Councilman to have the Town Manager do this for them.”
However, could the fast-tracking and mayoral or council/applicant presence during some of that fast-tracking lead to staff oversights on code regulations under the real or implied pressure they felt they were under, particularly when some were in interim management positions due to staffing cutbacks? Maybe the promised administrative review of “outdated policies and procedures to ensure consistency” promised in the final sentence of both the report-accompanying press releases will address that issue.
Here are the links to the corrected documents and press release.
World sailing venture and Public School use of CARES grant funding dominate supervisors’ public hearings discussion
On Thursday, November 18, the Warren County Board of Supervisors played a double header, leading off with a Special Meeting quickly adjourned into a closed Executive Session at 6:30 p.m. for discussion of investment in a North River District property inside the Front Royal town limits. No action or announcement followed that closed session and the Special Meeting was adjourned at 7:01 p.m.
Down a man, retiring Happy Creek Supervisor Tony Carter absent, the board then convened its second regular meeting of the month to face a 10-public hearing agenda. But not before leadoff batter, County Administrator Ed Daley, suggested the board amend the agenda to remove its last item. That item was another closed session, this one to discuss an “Unannounced Expansion of Existing Business or Industry” located in the North River District outside the town limits. Daley suggested revisiting that topic at the board’s December 14 meeting and the board agreed to the change without dissent.
No one answered a call for Public Comment on matters not on the meeting agenda and it was quickly on to board and staff reports. During member reports, North River Supervisor Delores Oates emotionally thanked the community for its outpouring of sympathy at the recent unexpected death of her 43-year-old brother.
Board Chairman Cheryl Cullers then commended Vice-Chairman Archie Fox for his representation of the board in her absence at a state conference two days earlier during Governor Northam’s visit for the Nature’s Touch North Corridor business expansion announcement.
Board, administrative, and departmental reports out of the way, a nine-item Consent Agenda, including payment of two more counterproductive according to wildlife experts and county animal control staff, Coyote Bounties of $50 was passed as presented. With nothing else on the agenda except the 10 public hearings, that 4-0 vote at 7:15 p.m. took the board into a 15-minute recess since public hearings are legally announced to begin at 7:30 p.m.
Fortunately, if you were a clock watcher, seven of the public hearings drew no speakers for or against proposals. The other three drew comments from applicants on their requests, and one of those drew one speaker against the application of Gordon Lee Birkhimer for a short-term tourist rental Conditional Use Permit (CUP) on his Massanutten Farms Subdivision home property off a private road. That speaker was closest neighbor Pamela Rhodes, who told the board she didn’t move to the secluded area over two decades ago to find “strange people” traveling in and out on a regular basis.
Sail Away income
Deputy Planning Director Matt Wendling noted that two letters in support and two letters against, apparently including Rhodes’, had been received about the proposed use. Wendling further explained that Birkhimer wanted to utilize his single-family home for short-term tourist rentals while away on a sailing trip around the world he anticipated lasting for two years. Wendling’s written summary of the proposal noted that “The applicant may continue the use after his oceanic global expedition if he doesn’t get swallowed by a whale or gets stranded in Tahiti.”
As to neighbor concerns about disturbances, Wendling said that despite often-expressed neighbor concerns during the public hearing process, the county has “never had” a complaint call once approved short-term rentals have been launched. Board discussion noted that Conditional Use Permits were just that, “conditional” upon adherence to the conditions attached to the permitting, which include protection of neighbors’ interests.
After questioning Birkhimer on a management plan in his absence and safeguards to prevent neighbor concerns about disturbances, including running-loose dogs, trespassing, noise, etcetera, the board approved the request by a 4-0 vote on a motion by Fox, seconded by Oates.
Public School staff grilled
The only speakers at a public hearing on approving County distribution of just over $4 million in federal Coronavirus Aid Relief and Economic Security or CARES Act ($4,012,255) and state grant ($49,985) funding to Warren County Public Schools to help cover expenses during the COVID-19 pandemic were Assistant Superintendent for Administration George “Buck” Smith and Finance Director Rob Ballentine. They explained they were standing in for Superintendent Dr. Chris Ballenger, who was out of town at a schools conference.
However, this ended up being the lengthiest public hearing as Shenandoah District Supervisor Walt Mabe grilled Smith and Ballentine for about 25 minutes of the half-hour public hearing. Mabe sought additional detail on specific uses of the money and specific duties of staff positions augmented by the grant funding. Mabe appeared concerned that in a future budget cycle the county government might be asked to continue at least portions of the supplemental funding. Smith explained that for the most part, the grant money was being used “to help us get from where we are to where we need to be” in providing quality education under the trying circumstance of the past two years and continue capital improvement projects.
And while there was a four-category general breakdown in the written presentation of the request in the board packets: Instruction, $2,907,875; Operations and Maintenance, $9,721; Facilities, $1,042,644; and Technology, $102,000; accompanied by a 16-category “Detail” of those categories that included Elementary Teacher and Supplements ($163,600); Teacher Uppport (sic) of Quarantined Students ($29,190); Social Emotional Materials ($13,799); and Technology Hot Spots ($102,000), among others, some of those categorizations appeared to raise more questions than answers for Mabe.
It was numbers like $1,042,644 for LFK and BRTC Architect Fees; $566,216 for Student Support Assistants; and $515,994 for Additional Assistants that Mabe sought more specificity on. Smith said he would have to defer to the absent Superintendent Ballenger on some of those questions, particularly staffing ones. While saying he wasn’t “throwing stones” at the public school officials, Mabe said he worried that money was being “thrown” at what he said weren’t “money problems” but rather “people problems”.
However, when Mabe made a motion to delay approval of the grant funding until more detail could be provided, the chair’s call for a second was met by silence. North River Supervisor Oates then wondered if the board wouldn’t risk losing the grant money if it ultimately decided not to appropriate it as planned, to the county’s public school system.
“I personally think that tabling it is not in the best interest of the children we’re trying to educate,” Oates continued, noting, “The funds are there, the government has appropriated them, whether I agree with that or not. And at this point I think it would be prudent to just go ahead and appropriate the funds.”
That would not preclude asking Superintendent Ballenger to return in December with some of that additional detail Mabe was seeking, Oates pointed out. Mabe’s motion having died without a second, Oates made a new motion to approve the CARES and state grant funding to the public school system. Seconded by Vice-Chairman Fox, the motion then passed by a 4-0 vote, with Mabe, after a few seconds of thought, voting with the majority.
In other business the board first approved a Zoning Text Amendment presented by Planning Director Joe Petty adding gunsmithing services as a use by Conditional Use Permit in Residential-1 zoning districts. It is already a use allowed in Agricultural District. However, as staff noted in the agenda packet “currently there is no definition or supplemental regulations for such use”. The proposed amendment adds a definition and list of conditions for gunsmithing services into the county code.
That text amendment approval was followed by approval of Lorne Cooper’s CUP request for such gunsmithing services in a Residential-1 District. Cooper also responded to In response to a question from Vice-Chairman Fox, Petty said that a walk-up shooting range aspect would not be allowed in a Residential District, but with certain conditions met on adequate-sized properties, it could be in Agricultural Districts.
Also approved by the board after public hearings on Thursday were two ordinances related to one-time $3,000 bonuses to Sheriff’s Office deputies, including the sheriff, for both state Compensation Board-covered employees and non-Comp Board-covered employees. The bonuses for part-time employees will be $1500. While the state will cover the Comp Board employee bonuses, it was explained that the estimated $92,055 cost of the non-Comp Board employee bonuses will be covered by the County’s allocation of funding from the American Recovery Act Plan of 2021.
After some explanation by Assistant County Attorney Caitlin Jordan and subsequent discussion of variables, the board passed an ordinance amendment regarding the collection of a transient occupancy tax on rooms rented out for less than 30 days. The emergence of short-term tourist rentals out of homes led to an ordinance language change deleting “motel” for “accommodation” to assure all rental units used in this way are included. It was estimated that the County will realize about $18,000 in new revenue from the change.
Other matters approved included Terra Site Constructors LLC’s CUP request for a Contractor’s Storage Yard at 6986 Winchester Road in North River District; Michael and Leslie Hofbauer’s CUP request for a short-term tourist rental at 223 Chapel View Drive in the Shenandoah District; and Michael Blevins CUP request for a short-term tourist rental at 267 Trillium Trail Road in the Shenandoah District.
And with the Blevins CUP approval after public hearing number 10 and no response to the chair’s call for any new business, the board adjourned at 9 p.m.
Town Planning Commission wrestles with Holloway Subdivision Approval/Denial fallout after Town Manager releases report
Wednesday’s regular Front Royal Planning Commission was supposed to include a discussion of a completed report requested by the Planning Commission at its September 15 meeting, prior to its public release. Instead, the commissioners puzzled over several dated versions of the report crafted by Town Attorney Douglas W. Napier. The request was for the “Planning Director, or designee, to investigate and determine the facts surrounding the circumvention of the subdivision ordinance regarding Minor Subdivision application FRSUB2852-2021”, submitted by Mayor Holloway’s construction company. Earlier Royal Examiner reporting has revealed that the town attorney was asked to complete the report rather than the planning director, who works for the Town Manager.
In an unusual turn of events, just hours before the Planning Commission meeting, the Town released an earlier version of the report, accompanied by a statement from Town’s Public Information Officer (who knew we had one?) Joanne Williams. In this statement, the Town was oddly ambivalent about the report it was releasing, characterizing it as concluding “there was no wrongdoing by the Town Manager, Administration, staff, or Holloway Construction. While it appeared that more time could have been taken to review requests, the findings indicated that the mayor’s company was not given priority over other projects.”
The text of the report included with the Town press release is somewhat at variance with the language of the press release itself, since it gives a specific example of “at least Implicit pressure” for the interim planning director to sign the re-subdivision plat as soon as it was presented to him. The report goes on to say that “As a result, correct Town Code Procedures were not followed …”
The report attached to the press release further states:
“In the facts set out here, it became clear that there was a desire and pressure for much faster than usual land-use decision approval. This is understandable that a builder would want this.
However, when dealing with complex land use issues, this, in turn, cause significant mistakes being made by Town staff, in the form of approval of a re-subdivision plat and issuance of zoning permits that should not have happened when it did, before it should have, and without the required issuance of a special exception, had those mistakes not been caught after the mistakes were made (grammar in context). Had those mistakes not been caught, the title to those lots would have been bad because the private street accessing the subdivision lots would not have been legal. To Town staff, this rush to approval was seemingly done to please the applicant, even in the absence of any overt pressure having been exerted by the applicant.”
The commissioners were at pains to point out that Planning Director Lauren Kopishke, who took her position after the events at issue had occurred, was really the hero of the piece and prevented a lot of future heartache for the Applicant and the Town. Several commissioners shared their hope that she would get credit for her vigilance.
The Commission eventually agreed to defer action on the report until it is received in its final verified form; can be discussed at a work session, and targeted for approval at the regular December meeting. Commissioner Merchant commended the Planning Staff and Town Attorney Napier for their good work on the report. This reporter wonders whether the final report will be an exact copy of that released by the town. Time will tell.
In other business, the Commission was presented with the FY 2022-2027 Draft Capital Improvement Plan (CIP). The plan covers capital improvements to the town infrastructure and is not so much part of the budget preparation process, but it can help prioritize large expenditures in harmony with the Town’s Comprehensive Plan. Not all items end up in any one year’s budget. The commissioners asked several questions about the commission’s role in developing the CIP. Planning Director Kopishke responded that the commission’s review role helps make sure that items identified in the CIP are also in accordance with the Comprehensive Plan, which is currently under development. The commission voted to table further review and discussion of the draft CIP until its December work session and regular meeting.
The commission also took a first look at a circulating draft of a new ordinance governing short-term tourist rentals in town. The County developed an ordinance and has been approving short-term tourist rentals in the county, so Planning Director Kopishke used the County’s ordinance as a starting point for such a Town ordinance proposal. The Town currently has no such mechanism, so technically facilities like AirB&B and VRBO in the town limits are not operating legally by a Town code, Director Kopishke pointed out. The commission will take up the draft ordinance at its December meeting, and meanwhile, the planning staff will review surrounding communities’ regulatory mechanisms for this phenomenon.
Town Administration beats Planning Commission to punch – releases report on Holloway LLC’s subdivision approval process Wednesday afternoon
While to this reporter’s knowledge we have yet to receive the promised “additional information” press release on recently hired Town of Front Royal Public Information Office (PIO) consultant to Fortune 500 companies among others, Joanne Williams and company, we know she/they are at work. For it is her name as Public Information Officer that is at the top of a town administration statement about the planning commission-initiated investigative report into the initial approval process for Mayor Chris Holloway’s construction company’s non-conforming subdivision request.
That press release and the report were released at 4:45 p.m., two and a quarter hours prior to a Front Royal Planning Commission meeting Wednesday night, November 17, at which the report’s public release was anticipated to be a major topic of discussion. And it still was a major topic, all four or was it five, dated versions of the report that appear to exist – see Stephen Sills coming planning commission story and accompanying town video for more detail.
The report, which for two months-plus was a topic of discussion only behind closed doors, was originally requested by the planning commission to be prepared by new Planning Director Lauren Kopishke. However, Commission Chairman Douglas Jones is reported to have later requested the inquiry be prepared by Town Attorney Doug Napier.
The release of the 20-page report on how Mayor Chris Holloway’s construction company’s non-conforming six-unit subdivision request was forwarded through the planning department and approved by council was accompanied by the new Front Royal PIOs five-paragraph overview of someone’s perception of what the report concludes.
The new PIOs conclusion, under the auspices of a Town Administration that was at the center of the report’s investigation, is this: “Following weeks of review, the Town Attorney concluded in his report that there was no wrongdoing by the Town Manager, Administration, staff, or Holloway Construction. While it appeared that more time could have been taken to review requests, the findings indicated that the mayor’s company was not given priority over other projects.”
The Public Information Office’s conclusion is that “Front Royal’s Town Manager, Administration, and staff are committed to following proper policy and procedures and will continue to do so in the future. In addition, the Town will be reviewing outdated policies and procedures to ensure consistency”.
However, page six of the attorney’s report appears to indicate actual and perceived pressure brought to bear on a planning department with only an interim director at the time: “In this case, it is clear from all staff reports that the Town Manager in effect personally ‘carried the ball’ for Mr. Holloway’s application by the Town Manager himself making sure that the Planning and Public Works Departments and their staffs knew that the Town Manager was overseeing the re-subdivision application for Mr. Holloway, and the Town Manager wanted this application expedited as quickly as possible.”
The report further notes not-so-subtle pressure being applied on the then Interim Planning Director: “The Town Manager himself fast-tracked the application and its approval in such a way that the re-subdivision plat was approved by the Interim Planning Director on the spot, as soon as it was presented to him by the Town Manager, in the presence of Mr. Holloway. The Town Manager called the Interim Planning Director to his office, while Mr. Holloway was there, and asked the Interim Planning Director to sign the re-subdivision plat right then, after the Town Manager himself had already signed it … the Interim Planning Director felt there was at least an implicit pressure to sign the re-subdivision plat as soon as it was presented to him – it was presented to him by his boss, the Town Manager, in the presence of the Mayor – the Interim Planning Director did not feel he had the time, nor did he take the time, to review the Town Code to be certain the correct Town Code procedures were being followed.”
Of the town manager’s “fast-tracking” the mayor’s application, the above paragraph does observe that: “It should be clearly and unambiguously stated that there is no current Town Code provision that states this it is impermissible for the Town Manager to do this, or for a Mayor or Town Councilman to have the Town Manager do this for them.”
Maybe that would be a good starting point for the Town’s promised review of “outdated policies and procedures to ensure consistency.”
See the entire November 17th Town Press Release and its attached “PLANNING COMMISSION INTERNAL INQUIRY REPORT” originally dated October 7 below.
Recommendation of Review of Front Royal’s Planning Department Policies & Procedures
On September 27, 2021, the Front Royal Town Council approved a private street to service a new 6-unit townhouse development for Chris Holloway Construction, LLC. Chris Holloway is Front Royal’s mayor, but he was not present during the town meeting. Council’s vote overruled a recommendation by the Planning Commission to deny approval. By law, Front Royal Town Council is not required to approve recommendations from appointed Boards and Commissions.
At the Planning Commission’s September 15, 2021, meeting, a motion asking Front Royal’s Planning Director to prepare a report on policy and procedures of the subdivision ordinance was approved. The motion focused on Chris Holloway Construction, LLC’s townhouse project. Later, the Chairman of the Planning Commission asked the Town Attorney to conduct the inquiry. The Town Attorney proceeded with the review even though he works directly for and represents Town Council.
Following weeks of review, the Town Attorney concluded in his report that there was no wrongdoing by the Town Manager, Administration, staff, or Chris Holloway Construction, LLC. While it appeared that more time could have been taken to review requests, the findings indicated that the mayor’s company was not given priority over other projects.
During the time of the request of Chris Holloway Construction, LLC, the Town was without a Planning Director and was in the process of filling the position. With a smaller staff, the Town Manager did not want any development projects delayed, so he offered assistance to Planning staff in moving all types of development projects forward, which included the Chris Holloway Construction, LLC plans. The Town Manager is authorized to approve all projects following the Planning Department’s review and recommendation, in addition to the Town Attorney’s review.
Front Royal’s Town Manager, Administration and staff are committed to following proper policy and procedures and will continue to do so in the future. In addition, the Town will be reviewing outdated policies and procedures to ensure consistency. The Planning Commission is scheduled to review the Town Attorney’s report tonight.
*Planning Commission report attached. (below)
CONFIDENTIAL: PROTECTED BY ATTORNEY/CLIENT PRIVILEGE EXEMPT FROM DISCLOSURE UNDER F.O.I.A.
TO: CHAIRMAN AND MEMBERS OF PLANNING COMMISSION
Via LAUREN KOPISHKE, DIRECTOR OF PLANNING
FROM: DOUGLAS W. NAPIER, TOWN ATTORNEY
DATE: OCTOBER 7, 2021
RE: PLANNING COMMISSION INTERNAL INQUIRY REPORT
At the Planning Commission’s September 15, 2021 meeting, Planning Commissioner Darryl Merchant, on his own initiative, made the following motion, which was seconded and voted upon as follows:
RE: Motion made at the 9-15-2021 Planning Commission Regular Meeting.
Commissioner Merchant moved, seconded by Vice Chairman Marshner that the Front Royal Planning Commission ask the Planning Director, and/or designee, to investigate and determine the facts surrounding the circumvention of the subdivision ordinance regarding Minor Subdivision application FRSUB2852-2021. That the Planning Director, and/or designee, prepare a written report of facts for review by the Planning Commission and include recommendations, if any, that would prevent this situation from occurring again.
VOTE: Yes – Jones, Marshner, Gordon, Merchant, Ingram
No – N/A
Abstain – N/A
Absent – N/A
Initially, the inquiry was being conducted by the Director of Planning & Zoning. Subsequently, following some issues, the Chairman of the Planning Commission requested that the inquiry be conducted by the Town Attorney instead. This report is a summary of that inquiry.
Virginia is a Dillon Rule state, meaning that the powers of local governing bodies, judicial bodies, and administrative bodies are all “fixed by statute and are limited to those conferred expressly or by necessary implication”. “This rule is a corollary to Dillon’s Rule that municipal corporations [or any other local governmental body or agency] have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable.” There is a statute which imposes upon planning commissions the “duties” to effectuate the intent of Chapter 22 of Title 15.2 of the Code of Virginia, which intent is to “improve the public health, safety, convenience, and welfare of their citizens and to plan for the future development of communities”. The primary method by which the “development of communities” is carried out is by the Comprehensive Plan and by the Zoning and Subdivision Ordinances. By statute, Zoning and Subdivision Ordinances and amendments thereto, and the Comprehensive Plan and amendments thereto, before being acted upon by the local governing body, first must have recommendations made by the local planning commission to the governing body.
The Code of Virginia allows local planning commissions to make investigations pertaining to its affairs. Further, case law in Virginia, following what appears to be the universal rule, has
“repeatedly held that an administrative officer or bureau may be invested with the power to ascertain and determine whether the qualifications, facts or conditions comprehended in and
required by the general terms of a law, exist in the performance of their duties, and especially when the performance of their duties is necessary for the safety and welfare of the public.”
However, I think the specific actions of local government employees as they relate to specific aspects of their performance of their job duties, in this matter as all others, should be left to their supervisors, including Town Council. I do think planning commissions have a core duty and responsibility to make recommendations to the governing bodies when the planning commission sees local land use ordinances and policies are in need of modification or are not being carried out properly or consistently, without the planning commission getting into the business of employee performance action.
This inquiry is not intended to make accusations or judgments on the part of anyone. That is not my role or the role of the Planning Commission. It does, however, find that the Town Code sets out the processes that are to be followed in given situations involving Town land use matters. When the processes set out in the Town Code are not followed, it creates undue burdens on Town staff and creates opportunities for mistakes that can ultimately harm both staff and applicants for Town land use decisions. It also can also cause the public and staff to feel that two procedural standards are being applied, depending upon who the person is. Most importantly to the land use applicant himself, when the law in the Town or State Code is not followed, there will almost always be serious repercussions, usually financial, to follow at some point, when a future lender or future buyer’s title examiner, land surveyor, or attorney discovers the legal error, because the applicant, when he sells the property that has the title defect, has to unconditionally guarantee title to the property in the deed of conveyance (“general warranty of title”). This warranty of title “runs with the land”, and, in effect, the problem never goes away until it is discovered and is corrected, by going back and re-doing the correct process and obtaining a special exception, if a future Town Council is willing, or filing a lawsuit to clear title.
In the facts set out here, it became clear that there was a desire and pressure for much faster than usual land use decision approval. This is understandable that a builder would want this. However, when dealing with complex land use issues, this in turn cause significant mistakes being made by Town staff, in the form of approval of a resubdivision plat and issuance of zoning permits that should not have happened when it did, before it should have, and without the required issuance of a special exception, had those mistakes not been caught after the mistakes were made. Had those mistakes not been caught, title to those lots would have been bad because the private street accessing the subdivision lots would not have been legal. To Town staff, this rush to approval was seemingly done to please the applicant, even in the absence of any overt pressure having been exerted by the applicant.
2. NORMAL PROCESS:
This matter involved an application for what was intended to be a minor subdivision (essentially, a subdivision of eight or fewer lots), plus approval of a private street and approval of the street’s name.
Town staff is clear and united as to the normal process to be followed in the case of an application for a subdivision or zoning permit that is received by the Department of Planning & Zoning. Town staff is also clear and united as to what in fact did happen in this matter, and how it differed from the normal and usual process.
Normally, Town policy is that all applications for minor subdivisions have a two (2) week review period to ensure a proper review period by the Town’s Department’s of Planning & Zoning, Public Works, and Energy Services. (Town Code actually formally allows a much longer period of time for minor subdivisions to be reviewed and acted upon, but Planning Department staff apparently follows the sketch plan review timeline set out in Town Code 148-405. B. 2.) This is in order to create the proper utility accounts, assignments of addresses, creation of the parcels into appropriate GIS form, gather up the appropriate documents and forward them to the Finance Department, Public Works, and Energy Services, for those Departments to do what the Town Code requires during that two week period before a zoning permit can be issued or a subdivision application can be approved, if it can be approved administratively by the Director of Planning & Zoning.
Typically, for a minor subdivision, which is what was intended in the situation that will be discussed here, a minimum of five copies of the subdivision plat, a completed subdivision application form, the appropriate administrative review fees, and appropriate supporting documentation would be submitted to the front desk of the Planning & Zoning Department. A receipt for the fees paid would then be created. The plat would then be assigned a reference number and the plat and application would be digitally entered into the EnerGov computer tracking system, EnerGov would notify applicable Town Departments, such as Public Works and Energy Services, to review the submitted documents. If, after this review, and review by the Director of Planning & Zoning that the requirements of the Subdivision and, if applicable, the Zoning, Ordinances have been complied with, the minor subdivision would then be approved.
During that two week period, in the case of a subdivision application, the typical process when Public Works receives a request for its review from Planning & Zoning is as follows:
The Public Works Department receives an email from Planning & Zoning with a plan (reference) number and link to connect to EnerGov software, which allows interconnectivity between the affected Town and County Departments. Public Works will log in to the appropriate Planning documents and print the appropriate application and plat and any other needed documents. Public Works has two (2) weeks to review if a Town application or plan and thirty (30) days if a County plan.
There are several different Town reviewers for Public Works besides the Department Head, who review for water, sewer, street and other infrastructure issues.
If Public Works marks the documents “COMPLETE” in EnerGov, there is something that needs to be changed or something(s) additional that needs to be submitted before Public Works will approve from its Departmental standpoint. If there is something to be fixed in the documentation that was submitted, Public Works will not submit the Water & Sewer Connections/System Development Charges attached in the documents as a way for Public Works to know that the Town needs to see updated changes to the application before it can be approved.
If Public Works marks “APPROVED” in EnerGov, it means Public Works has reviewed the application and plans, and nothing additional is needed. Water and Sewer Connections/System Charges are then attached in the documentation that Public Works sends back to Planning & Zoning along with the possibility that a Right of Way Permit may be needed if any curb and gutter work or other work in the Town’s right of way may be needed.
In the case of a minor subdivision plat approval, which is what was intended here, the normal process would be, after all the reviews have been finished and approved by all the other Town Departments, that the Director of Planning & Zoning would then approve and sign the plat, the Finance Director, to indicate the Town’s real estate taxes had been paid, and the Town Manager would sign the plat, and then it would be recorded in the Clerk’s Office of the Circuit Court.
All this is set out because these reviews are labor intensive and time consuming. As always with the Town, as in all local governments, there is an endless stream of such work, with applications and reviews before this one, and applications and reviews after it, one after another, on and on.
3. THIS APPLICATION:
There are two somewhat differing accounts of what happened here. The first are March, 2021 meetings that the Town Manager had with the then-Planning Director that was relied upon.
The other are events which happened in the summer of 2021 which other Town staff report.
4. MARCH, 2021 EVENTS, AS RELATED BY TOWN MANAGER.
The Town Manager states that on March 10, 2021, he, the Clerk of Town Council, and Chris Holloway met with then-Planning Director Tim Wilson to discuss what approvals, whether administrative, Planning Commission, or Town Council, would be needed for vacation of Carter Street. Mr. Holloway wanted to know this prior to purchasing the land and going through the vacation process. During this meeting, according to the Town Manager, Mr. Wilson advised Mr. Holloway that a private street did not need approval of the Planning Commission or Town Council.
Based upon this, the Town Manager computed the value of the property in Carter Street to be vacated and sold to Mr. Holloway based upon recent vacations and comparable sales values of
properties on Steele Streets and Commonwealth Drive, which were also provided to Town Council in Closed Meeting.
CORRECTION: Another meeting on March 30, 2021 with Mr. Wilson was held to discuss what was needed for Mr. Holloway to build a private street on this property he was purchasing from the Town and resubdividing. Mr. Wilson did not advise Mr. Holloway or the Town Manager that a “special use permit” [sic] was NOT needed.
5. SUMMER, 2021 EVENTS AS RELATED BY OTHER TOWN STAFF.
Without getting into the details of what the various individual members of Town staff related as to what happened, the following facts all Town staff members from all these affected Town Departments, both Planning & Zoning, and Public Works, do agree upon, and this seems to directly affect how the Planning Commission might want to consider going forward. In reviewing the individual written reports submitted by the various staff members from those Departments, as well as interviewing the Planning Director, Assistant Town Attorney and the Assistant Town Manager, this is what I have concluded:
This subdivision application was for Mr. Holloway, who is also, of course, the Mayor. Obviously, there is nothing wrong with Mr. Holloway making a living, and in the course of making a living, Mr. Holloway has as much a right to make application for local land use approvals of his property from the Town as does any other person.
In this case, it is clear from all staff reports that the Town Manager in effect personally “carried the ball” for Mr. Holloway’s application by the Town Manager himself making sure that the Planning and Public Works Departments and their staffs knew that the Town Manager was overseeing the resubdivision application for Mr. Holloway, and the Town Manager wanted this application expedited as quickly as possible.
It should be clearly and unambiguously stated that there is no current Town Code provision that states this it is impermissible for the Town Manager to do this, or for a Mayor or Town Councilman to have the Town Manager do this for them.
The Town Manager himself fast-tracked the application and its approval in such a way that the resubdivision plat was approved by the Interim Planning Director on the spot, as soon as it was presented to him by the Town Manager, in the presence of Mr. Holloway. The Town Manager called the Interim Planning Director to his office, while Mr. Holloway was there, and asked the Interim Planning Director to sign the resubdivision plat right then, after the Town Manager himself had already signed it. Because the resubdivision application was to include a private street, Town Code requires that a special exception to be granted by Town Council. This special exception process has not been applied for within the experience of anyone in the memory of current staff, and therefore no one was familiar with it. Because of that unfamiliarity, and because the Interim Planning Director felt there was at least an implicit pressure to sign the resubdivision plat as soon as it was presented to him — it was presented to him by his boss, the Town Manager, in the presence of the Mayor — the Interim Planning Director did not feel he had the time, nor did he take the time, to review the Town Code to be certain the correct Town Code procedures were being followed.
As a result, the correct Town Code procedures were not followed, notwithstanding what former Town Planning Director Tim Wilson may have said. What the Town Code very clearly states “Subdivisions on new non-dedicated private streets may be permitted upon the approval of a special exception by Town Council.” Town Code further states that special exceptions may be granted only after the Planning Commission first makes a recommendation to Town Council as to the special exception following the Commission’s public hearing, which itself is following public advertisement once a week for two consecutive weeks in a newspaper, which is required by the Code of Virginia. That recommendation is to be followed by another public hearing by Town Council and approval of the special exception application, after the same public hearing requirements. That process was not followed, which Town Code required, before the Interim Planning Director and the Town Manager, approved and signed the resubdivision plat, and that plat was recorded and zoning permits issued. Because the special exception had not been approved for the private street in accordance with those laws, the resubdivision plat should not have been signed as approved, and the zoning permits were not properly issued and were a legal nullity.
In addition, the Town Manager himself understandably could have felt pressure to fast-track this application, since the application was for the Mayor. The reports of the individual Town staff members of both the Planning and Public Works Department clearly indicate that they felt pressured, implicitly at least, to get their respective Departmental reviews of this application completed within that same business day if at all possible, when the Town’s usual policy was two weeks. While Town Code only makes a recommendation as to this two week period, it should be recalled that Town staff always has a lot of work to do which are already in the queue ahead of any given application, not just for certain people who apply later one but want to have their application finished and approved first.
It was only after the current Planning Director was hired, when she discovered that the special exception requirement was not followed, that this matter was begun to be brought to a head. As earlier noted, all of this is no abstract, bureaucratic or legalistic mumbo-jumbo, or mere time-consuming annoyance, but one which everyone should be grateful was caught when it was. When Mr. Holloway sells the lots, he will convey each one with a “general warranty of title”. A general warranty of title means that the owner, his heirs and personal representatives will forever warrant, or guarantee, and defend the said property to the grantee (buyer), the buyer’s heirs, personal representatives and assigns (purchasers from the buyer, and purchasers from the buyer’s purchasers, forever, against the claims and demands of all persons whomsoever. Va. Code § 55.1-110; Booker T. Washington Const. & Design Co. v. Huntington Urban Renewal Authority, 383 S.E.2d 41, 181 W.Va. 409 (W. Va. 1989). As an example, the Town had a major title issue earlier this year when the Town did not clear up title to property on Hill Street when it should have back in the 1980s. The title problem was discovered earlier this year during the course of the sale of the property, and it caused some significant problems both for the purported owners of the property, who discovered that in fact they did not own the property even though they had paid for it, and for the Town.
6. POLICY RECOMENDATIONS
In order help everyone in the future preserve the integrity of the land use review process and reduce the appearance of impropriety, as well as to help ensure adequate staff time to review applications, the following is recommended as policy, and can even be implemented as part of the Town Code in the Subdivision and Zoning Ordinances:
a) All applications must be processed directly through the Department of Planning & Zoning, at that office itself.
i) The Town Manager, Town Attorney, and Assistant Town Attorney are not authorized to accept Subdivision or Zoning applications to be processed through the Planning Department.
b) No staff member who reports to the Director of Planning will attend a request for a meeting with any Town Manager, Members of Town Council, or appointed Town Official, alone. Planning & Zoning staff should not put themselves into a position where they could be asked to sign or review a document that has not been officially submitted. Planning & Zoning staff must avoid situations where there are no independent, impartial persons who can attest to the nature of the meeting.
i) By requiring the Planning Director, Assistant Town Manager, or Town Attorney to be present in any meeting it protects all parties present.
ii) Concerns of improper pressure will not exist because staff will not be placed into a situation where it is one person’s word against another.
iii) Persons in positions of authority have the ethical responsibility of making sure they do not use their position to influence the actions of staff in any manner inconsistent with
staff’s job duties or with Town policies.
c) The Town’s Subdivision Ordinance is confusing and in some area’s conflicts with the Town’s Zoning Ordinance. It is difficult for staff to navigate the documents at times and even more so for the general public who may not have exposure to the language contained in an Ordinance.
To mitigate the confusion of the Ordinance staff will:
i) Begin working on a general development guide, outlining the proper process for those who are interested in undertaking development projects. This guide will be printed in the office and posted on the Town’s Website.
ii) Staff will also require pre-application meetings for all zoning and subdivision submissions. This will allow Staff to sit down, face to face, with the applicant and explain the process and provide the necessary applications.
iii) Staff will have not less than two (2) weeks to review and process Subdivision and Zoning applications for land located within Town limits in order to help ensure that proper laws and policies are being followed.
iv) Staff has begun the process of revising the actual application document for clarity. During the pre-application meeting, staff should review the application, page by page, with each applicant and explain how each page should be completed. This will ensure a completed application is submitted which reduces review times and increases efficiency of the review process.
v) As part of the application revisions, staff will develop checklists for each type of land use application which applicants will complete and sign. If the checklists are not completed, the application will not be accepted by staff.
7. APPLICABLE LAW IN TOWN CODE :
The Director of Planning and Zoning, hereafter referred to in this Ordinance as the “Director”, shall administer this Ordinance. The Director may establish such administrative rules and
procedures as deemed necessary, under the general direction and guidance of Council.
148-160 INTERPRETATION; WORD USAGE
C. This Chapter shall be used and interpreted in conjunction with the provisions of Chapter 175, Zoning, and other applicable ordinances of the Town of Front Royal.
D. In the event a term is not defined in this Chapter, the Director shall refer to other Chapters of the Front Royal Code for guidance and to Virginia Code § 15.2-2201 as amended. If ambiguity
remains, the Director shall then rely on the conventional, recognized meaning of the word or phrase (e.g. the current edition of Merriam-Webster’s Dictionary).
148-180 SUBDIVISION APPROVAL AND RECORDING REQUIRED
A. Whenever any subdivision of land is proposed, before any sale, exchange, transfer, or recordation is made of any subdivided part thereof and before any permit for the erection of a structure in such proposed subdivision shall be granted, the applicant shall apply for and secure approval from the Town of Front Royal of such proposed subdivision, in accord with all provisions of this Chapter. Plats for each and every separate parcel comprising the source tract, to include all primary and residual subdivided parcels, shall be required to be submitted for approval. Upon approval, plats shall be recorded among the Land Records of Warren County, Virginia.
B. Hereafter all plans for the subdivision of land within the corporate limits of the Town of Front Royal shall be reviewed and acted upon by the appropriate town, state or other officials in accord with procedures and other requirements as may be provided for in this Chapter. Any change in a recorded plat shall constitute a re-subdivision and shall make said plat subject to any and all of the requirements of this Chapter.
C. No plan or plat for the subdivision of land within the corporate limits of the Town of Front Royal shall be approved unless and until all Town real estate taxes, delinquent taxes, including interest and penalty, on the entire parcel to be subdivided have been paid in full. The Director shall notify the Director of Finance that the plan or plat is ready for signature approval after all review agency comments have been addressed. The Director of Finance shall then be the first person to sign the plans or plats under the notation that all Town real estate taxes have been paid in full.
D. The Town shall not approve a subdivision of land if, after adequate investigations conducted by all public agencies concerned, it has been determined that in the best interest of the public, the site is not suitable for platting and development purposes of the kind proposed. Provisions of this chapter shall be relied upon to determine suitability.
148-200 COMPLIANCE REQUIRED
A. The Warren County Clerk of Court shall not file or record a plat of a subdivision until such plat has been approved as required herein. The penalties provided herein shall apply to any failure to
comply with the provisions of this Chapter.
B. No zoning clearance permit will be issued by any administrative officer of the Town of Front Royal, for the construction of any building or other improvement requiring a permit upon any land for which a subdivision plat or site development plan is required, unless and until the requirements of this Chapter have been complied with. Any person aggrieved by the decision of any administrative official whose decision is required pursuant to this Chapter may appeal said decision to the Town Council.
148-211 SPECIAL EXCEPTIONS
A. A special exception to the general regulations of this Chapter may be granted by Town Council, for either of the following circumstances:
1. When strict adherence to the general regulations would result in substantial injustice or hardship; provided that, the special exception would not diminish public health, safety or general welfare, including, but not limited to, consideration that adequate provisions are provided to ensure long-term maintenance of public and shared private facilities, and conformance with the goals and objectives of the Comprehensive Plan.
2. When it is demonstrated that use of alternative regulations for a particular development would better achieve at least one of the goals listed below; provided that, the special exception would not diminish public health, safety or general welfare, including, but not limited to, consideration that adequate provisions are provided to ensure long-term maintenance of public and shared private facilities, and conformance with the goals and objectives of the Comprehensive Plan.
a. Creation of affordable housing.
b. Design emphasis on the principles of traditional neighborhood design, including pedestrian-friendly roads, interconnection of new local streets with existing local streets, connectivity of pedestrian networks, and mixed-use neighborhoods.
c. Conservation or use of on-site natural features to protect water quality or open spaces.
B. Any request for an exception, shall be submitted to the Director, and shall include a signed and completed application form, any application fees, and any supporting documentation submitted by the applicant.
C. Prior to approval or denial of any request for an exception, the Planning Commission shall hold a public hearing, in accordance with Virginia Code § 15.2-2204, to review and provide
recommendations to Town Council.
D. Prior to approval or denial of any exception to the design standards of this Chapter, Town Council shall hold a public hearing, in accordance with Virginia Code § 15.2-2204. [Emphasis
E. Town Council may impose such conditions or restrictions upon the premises benefited by an exception as may be necessary to comply with intent of this Chapter and to protect the public
interest, safety and/or general welfare.
Title 15.2 Counties, Cities and Towns
Chap. 22 Planning, Subdivision of Land and Zoning, §§ 15.2-2200 — 15.2-2329
Art. 1 General Provisions, §§ 15.2-2200 — 15.2-2209.2
Va. Code § 15.2-2204. Advertisement of plans, ordinances, etc.; joint public hearings; written notice of certain amendments. —
A. Plans or ordinances, or amendments thereof, recommended or adopted under the powers conferred by this chapter need not be advertised in full, but may be advertised by reference. Every such advertisement shall contain a descriptive summary of the proposed action and a reference to the place or places within the locality where copies of the proposed plans, ordinances or amendments may be examined.
The local planning commission shall not recommend nor the governing body adopt any plan, ordinance or amendment thereof until notice of intention to do so has been published once a week for two successive weeks in some newspaper published or having general circulation in the locality; however, the notice for both the local planning commission and the governing body may be published concurrently. The notice shall specify the time and place of hearing at which persons affected may appear and present their views, not less than five days nor more than 21 days after the second advertisement appears in such newspaper. The local planning commission and governing body may hold a joint public hearing after public notice as set forth hereinabove. If a joint hearing is held, then public notice as set forth above need be given only by the governing body. The term “two successive weeks” as used in this paragraph shall mean that such notice shall be published at least twice in such newspaper with not less than six days elapsing between the first and second publication. In any instance in which a locality in Planning District 23 has submitted a timely notice request to such newspaper and the newspaper fails to publish the notice, such locality shall be deemed to have met the notice requirements of this subsection so long as the notice was published in the next available edition of a newspaper having general circulation in the locality. After enactment of any plan, ordinance or amendment, further publication thereof shall not be required. [Emphasis added.]
B. When a proposed amendment of the zoning ordinance involves a change in the zoning map classification of 25 or fewer parcels of land, then, in addition to the advertising as required by subsection A, written notice shall be given by the local planning commission, or its representative, at least five days before the hearing to the owner or owners, their agent or the occupant, of each parcel involved; to the owners, their agent or the occupant, of all abutting property and property immediately across the street or road from the property affected, including those parcels which lie in other localities of the Commonwealth; and, if any portion of the affected property is within a planned unit development, then to such incorporated property owner’s associations within the planned unit development that have members owning property located within 2,000 feet of the affected property as may be required by the commission or its agent. However, when a proposed amendment to the zoning ordinance involves a tract of land not less than 500 acres owned by the Commonwealth or by the federal government, and when the proposed change affects only a portion of the larger tract, notice need be given only to the owners of those properties that are adjacent to the affected area of the larger tract. Notice sent by registered or certified mail to the last known address of such owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed adequate compliance with this requirement. If the hearing is continued, notice shall be remailed. Costs of any notice required under this chapter shall be taxed to the applicant.
When a proposed amendment of the zoning ordinance involves a change in the zoning map classification of more than 25 parcels of land, or a change to the applicable zoning ordinance text regulations that decreases the allowed dwelling unit density of any parcel of land, then, in addition to the advertising as required by subsection A, written notice shall be given by the local planning commission, or its representative, at least five days before the hearing to the owner, owners, or their agent of each parcel of land involved, provided, however, that written notice of such changes to zoning ordinance text regulations shall not have to be mailed to the owner, owners, or their agent of lots shown on a subdivision plat approved and recorded pursuant to the provisions of Article (§ 15.2-2240 et seq.) where such lots are less than 11,500 square feet. One notice sent by first class mail to the last known address of such owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed adequate compliance with this requirement, provided that a representative of the local commission shall make affidavit that such mailings have been made and file such affidavit with the papers in the case. Nothing in this subsection shall be construed as to invalidate any subsequently adopted amendment or ordinance because of the inadvertent failure by the representative of the local commission to give written notice to the owner, owners or their agent of any parcel involved.
The governing body may provide that, in the case of a condominium or a cooperative, the written notice may be mailed to the unit owners’ association or proprietary lessees’ association, respectively, in lieu of each individual unit owner.
Whenever the notices required hereby are sent by an agency, department or division of the local governing body, or their representative, such notices may be sent by first class mail; however, a representative of such agency, department or division shall make affidavit that such mailings have been made and file such affidavit with the papers in the case.
A party’s actual notice of, or active participation in, the proceedings for which the written notice provided by this section is required shall waive the right of that party to challenge the validity of the proceeding due to failure of the party to receive the written notice required by this section.
C. When a proposed comprehensive plan or amendment thereto; a proposed change in zoning map classification; or an application for special exception for a change in use or to increase by greater than 50 percent of the bulk or height of an existing or proposed building, but not including renewals of previously approved special exceptions, involves any parcel of land located within one-half mile of a boundary of an adjoining locality of the Commonwealth, then, in addition to the advertising and written notification as required by this section, written notice shall also be given by the local commission, or its representative, at least 10 days before the hearing to the chief administrative officer, or his designee, of such adjoining locality.
D. When (i) a proposed comprehensive plan or amendment thereto, (ii) a proposed change in zoning map classification, or (iii) an application for special exception for a change in use involves any parcel of land located within 3,000 feet of a boundary of a military base, military installation, military airport, excluding armories operated by the Virginia National Guard, or licensed public-use airport then, in addition to the advertising and written notification as required by this section, written notice shall also be given by the local commission, or its representative, at least 30 days before the hearing to the commander of the military base, military installation, military airport, or owner of such public-use airport, and the notice shall advise the military commander or owner of such public-use airport of the opportunity to submit comments or recommendations.
E. The adoption or amendment prior to July 1, 1996, of any plan or ordinance under the authority of prior acts shall not be declared invalid by reason of a failure to advertise or give notice as may be required by such act or by this chapter, provided a public hearing was conducted by the governing body prior to such adoption or amendment. Every action contesting a decision of a locality based on a failure to advertise or give notice as may be required by this chapter shall be filed within 30 days of such decision with the circuit court having jurisdiction of the land affected by the decision. However, any litigation pending prior to July 1, 1996, shall not be affected by the 1996 amendment to this section.
F. Notwithstanding any contrary provision of law, general or special, the City of Richmond may cause such notice to be published in any newspaper of general circulation in the city.
G. When a proposed comprehensive plan or amendment of an existing plan designates or alters previously designated corridors or routes for electric transmission lines of 150 kilovolts or more, written notice shall also be given by the local planning commission, or its representative, at least 10 days before the hearing to each electric utility with a certificated service territory that includes all or any part of such designated electric transmission corridors or routes.
H. When any applicant requesting a written order, requirement, decision, or determination from the zoning administrator, other administrative officer, or a board of zoning appeals that is subject to the appeal provisions contained in § 15.2-2311 or 15.2-2314, is not the owner or the agent of the owner of the real property subject to the written order, requirement, decision or determination, written notice shall be given to the owner of the property within 10 days of the receipt of such request. Such written notice shall be given by the zoning administrator or other administrative officer or, at the direction of the administrator or officer, the requesting applicant shall be required to give the owner such notice and to provide satisfactory evidence to the zoning administrator or other administrative officer that the notice has been given. Written notice mailed to the owner at the last known address of the owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall satisfy the notice requirements of this subsection.
This subsection shall not apply to inquiries from the governing body, planning commission, or employees of the locality made in the normal course of business. (Code 1950, § 15-961.4; 1962,
c. 407, § 15.1-431; 1964, c. 632; 1968, cc. 354, 714; 1973, cc. 117, 334; 1974, cc. 100, 570; 1975, c. 641; 1976, c. 642; 1977, c. 65; 1982, c. 291; 1990, c. 61; 1992, cc. 353, 757; 1993, cc. 128, 734; 1994, c. 774; 1995, c. 178; 1996, cc. 613, 667; 1997, c. 587; 2001, c. 406; 2002, c. 634; 2004, cc. 539, 799; 2005, c. 514; 2007, cc. 761, 813; 2011, c. 457; 2012, c. 548; 2013, cc. 149, 213; 2020, cc. 22, 761.)
148-220 VIOLATIONS AND PENALTIES
Any person, firm or corporation violating, causing or permitting the violation of any of the provisions of this Chapter shall be guilty of a misdemeanor and, upon conviction thereof, may be punishable by a fine of not less than $10 nor more than $1,000. If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with the zoning ordinance, within a time period established by the court. Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not less than $10 nor more than $1,000, and any such failure during any succeeding 10-day period shall constitute a separate misdemeanor offence for each 10-day period punishable by a fine of not less than $100 nor more than $1,500.
148-320 FINAL SUBDIVISION PLAT RECORDATION REQUIREMENTS
The purpose of good subdivision and site development design is to create a functional and attractive development, to minimize adverse impacts and to ensure that a project will be an asset to the general welfare of the community. To promote this purpose, all subdivision and site development plans shall conform to the standard herein, which are designed to result in a well-planned community without adding unnecessarily to the cost of development.
148-401 PRE-APPLICATION PROCEDURE
A pre-application consultation between the applicant and the Director is encouraged prior to the submission of any proposed subdivision. This is desirable to minimize development planning costs, to avoid misunderstanding or misinterpretation and to ensure compliance with the requirements of this Chapter. Representations made at pre-application meetings shall not be binding on the Town or the applicant.
148-405 SKETCH PLAN SUBMISSION REQUIREMENTS AND REVIEW PROCEDURES
A. Sketch Plan Submission Procedures.
1. A sketch plan of the proposed minor subdivision may be submitted prior to the preparation of engineered plans. In such cases, a sketch plan shall be considered a submission for informal discussion and shall not constitute official submission of a plan to the Town. A sketch plan shall be submitted to the Director in numbers sufficient for distribution to and/or review by appropriate Town departments. The sketch plan shall be prepared in accordance with the detail requirements of Section 148-1005.
2. Additional information may be provided at the option of the applicant.
B. Sketch Plan Review Procedures.
1. The sketch plan shall be reviewed administratively by the appropriate Town departments, taking into consideration the requirements of the Subdivision and Zoning Ordinances, the arrangement, location and width of streets, the topography of the land, sewage disposal, water supply, drainage and stormwater control, lot sizes and lot arrangement, further development of adjoining lands, the guidelines of the Town Comprehensive Plan and the requirements of other plans and ordinances as adopted by the Town. The advice of other officials or consultants may be sought in reviewing a sketch plan. Within one week of receipt by the Director, the sketch plan submission shall be reviewed for completeness. If found complete, it shall be immediately forwarded to the appropriate Town departments for review.
2. The reviewing departments shall have two (2) weeks for the review of the sketch plan and to provide written comments to the Director. The Director shall then contact the applicant and schedule a meeting to discuss any changes or modifications regarding any aspect of the plan that will be required for approval of future plan submissions. These discussions are informal and will not result in an official summary letter to the applicant, but are intended to serve as a guideline in the preparation of plans.
148-415 MINOR SUBDIVISION SUBMISSION REQUIREMENTS AND REVIEW PROCEDURES
A final subdivision plat is required for all minor subdivisions.
A. Minor Subdivision Submission Procedures.
1. An applicant shall submit a minor subdivision application form and checklist for a final subdivision plat to the Director along with sufficient number of the plat for distribution to and review by the appropriate Town departments.
2. The application shall be accompanied by a nonrefundable filing fee in the amount set in the schedule of fees.
B. Final Subdivision Plat Detail Requirements. The final subdivision plat shall be prepared by a land surveyor or professional engineer licensed by the Commonwealth of Virginia and shall conform to the Standards for Plats of the Virginia State Library Board (17VAC15-60-10, et seq). The Final Plat shall be prepared in accordance with the detail requirements of Section 148-1035.
C. Supplemental Data to Accompany Minor Subdivision Submission.
1. An overlot grading plan or generalized development plan as determined by the Director. The overlot grading plan and/or generalized development plan shall be prepared in accord with the requirements contained herein.
2. In the event that public water and/or sewer is not available to the site to be subdivided, a certificate of appropriate approval of the State Health Department for the water supply and/or sanitary sewage disposal system(s) for a proposed subdivision. If individual on-site sewage disposal systems are to be used, the applicant shall submit Health Department tentative approval of each lot in the subdivision as having a suitable site for a septic system at the state lot size. This shall be done on a lot-by-lot basis. This tentative approval does not guarantee the issuance of a permit for a septic system when construction occurs. The State Health Department reserves the right to withdraw any tentative approval at the time a permit for a septic system is applied for.
D. Minor Subdivision Review Procedures.
1. The Director shall determine whether the submitted plat, plan and application is complete, in accord with this Chapter. The Director must notify the applicant of any items that are required to make the application complete and eligible for official submission within ten (10) business days of submission. The date of official acceptance of the application by the Town shall be noted on the application.
2. After official acceptance of the application, the Director shall submit the plat and plan to the appropriate Town departments for review. The Director shall take action on the application within 60 days of submission. However, if approval of a feature or features of the proposed subdivision by a state agency or public authority is necessary, the commission or agent shall forward the plat and plan to the appropriate state agency or agencies for review within 10 business days of receipt of such plat or plan. Upon receipt of the approvals from all state agencies, the Director shall act upon the submission within 35 days.
3. The Director shall not approve any plan or plat until such plan or plat comply with the Town Code and until all required modifications are made. The Director shall notify the applicant if the plan or plat is disapproved, in writing, and the reasons for disapproval shall be specifically enumerated and the modifications or corrections necessary for approval shall be identified.
4. The Director shall act on any subdivision plan and plat that was previously disapproved within 45 days after the plan has been modified, corrected and resubmitted for approval.
5. If the review is favorable, the plat will be signed by the Director, the Director of Finance and the Town Manager, with the date of action.
E. As-built Survey Required.
1. An as-built plan is required for all minor subdivision overlot grading plans. The as-built drawing shall be prepared in accordance with the detail requirements of Section 148-1025.
148-820 STREET DESIGN
A. General Standards
1. All streets shall be dedicated to the Town of Front Royal for public use, and shall be designed, engineered and constructed to the public street design standards found within the Construction Standards and Specifications Manual.
2. Proposed subdivisions and developments shall coordinate the location, width and other street improvements associated with proposed streets with existing and planned streets that are contiguous to, or within, the property boundaries. For the purposes of this subsection, planned streets shall include streets, rights-of-way, and street improvements designated as a future road improvement by the Town of Front Royal Comprehensive Plan. Town Council, upon recommendation by the Planning Commission, may waive this requirement where the continuation of the planned, existing or platted street will create adverse traffic impacts.
a. The proposed street system shall extend existing or planned streets at the same width or larger, but at not less than the required minimum width as specified in this chapter. Where possible, a new intersection into an existing street shall align with an existing street intersection on the opposite side of such street.
b. Streets that are designated for continuation to adjoining properties shall be designed and constructed to the property line with a temporary cul-de-sac turnaround, or other temporary turn-around approved by the Town.
3. Whenever a property proposed for subdivision or development abuts or contains an existing public street that does not meet the minimum right-of-way width requirements of this article, additional right-of-way shall be provided on each side of the existing public street abutting the proposed subdivision or development so the minimum right-of-way width requirement is ultimately achieved.
4. On-site road improvements shall be required for new subdivisions or developments based on the requirements of this chapter.
5. In accordance with Virginia Code §15.2-2242.A.4, the Town may accept certain off-site road improvements that are reasonable and necessary, the need for which is substantially generated and reasonably required by the construction or improvement of the subdivision or development. Off-site road improvements may include, but are not limited to, acceleration and deceleration lanes, a center turning lane, a parallel service drive, reverse frontage lots, and/or the dedication of additional right-of-way.
6. In accordance with Virginia Code §15.2-2242.A.4, the Town may develop reasonable provisions for the advancement of payments for, or construction of, reasonable and necessary road mprovements located outside the property limits of the land owned or controlled by the subdivider or development, the need for which is substantially generated and reasonably required by the construction or improvement.
7. Private lanes or streets shall not be authorized for any new or existing subdivision or development without approval by the Town in accordance with Section 148-820.N.
N. Private Streets, Common Driveways, and Common Parking Courts.
b. Subdivisions on new non-dedicated private streets may be permitted upon the approval of a special exception by Town Council. In addition to the general submission requirements for special exceptions, as prescribed under this Chapter, requests for private streets through the special exception process shall include a concept plan prepared by a Virginia registered architect, landscape architect, land surveyor or engineer with seal and signature affixed to the plan. The plan shall be approximately to scale and clearly show the following:
 Location map showing existing zoning and ownership of property and adjacent land;
 Identification of principal site features, including topography, steep slopes, wetlands, wooded areas, archeological areas, floodplains, and other features of significant public interest.
 Relationship of the proposal with surrounding utilities and public facilities to serve the tract at the ultimate proposed densities;
 A general layout of the road system within the project, including all proposed private and public streets and land uses.
 Detailed information on the proposed private street standards with an explanation of the reason for any modifications to the public street standards of this Chapter.
 A description of the provisions for continued maintenance of any proposed private street.
 A description of the private deed restrictions that will be provided as notice to future property owners regarding the limitations of service available on any proposed private streets.
ARTICLE 9 – DEFINITIONS
As used in this Chapter, the following terms shall have the meanings indicated:
SUBDIVISION – The division of a parcel of land into separate parts, under the terms of this Chapter, regardless of whether the parts are held, developed, sold, leased, rented or transferred. The term includes resubdivision, and, when appropriate to the context, shall relate to the process of subdividing or to the land subdivided.
SUBDIVISION, MAJOR – Any subdivision other than a minor subdivision.
SUBDIVISION, MINOR – A subdivision that does not involve any of the following: the creation of more than a total of eight (8) lots, the creation of any new public streets, the extension of a public water or sewer system, or the installation of drainage improvements through one (1) or more lots to serve one (1) or more other lots.
Warren County: Notice of Taxes Due
Warren County tax bills for the second half of the year 2021 have been mailed. If you did not receive a bill for Personal Property, Real Estate, Sanitary District for Blue Mountain, Cedarville Heights, High Knob, Lake Front Royal, Linden Heights, Osprey Lane, Riverside, Shangri-La, Shannon Woods, Shenandoah Farms, Shenandoah Shores, Skyland Estates, Shangri-La, or Wildcat Drive, please contact the Treasurer’s Office at 540-635-2215.
Failure to receive a bill does not relieve the taxpayer of the penalty for late payment. Tax bills are due on December 5th, 2021. When the due date falls on the weekend, bills will be due the following business day. Penalty will be added December 7th, 2021 if not paid or postmarked on or before December 6th, 2021.
Treasurer’s Office hours are 9:00 am – 5:00 pm, Monday through Friday.
Jamie L. Spiker