And from across East Main Street in Historic Downtown Front Royal, seasonal greetings from both sides of the religious-secular fence at the Warren County Courthouse
County Building Code Appeals Board reduces Atwood violations to five
A second Warren County Building Code violations appeal go-round between local builder Buracker Construction and disgruntled home construction client Kristie Atwood on Tuesday, September 10, resulted in a similar result to a first appeal go round in 2018.
That result was a reduction from six to five determined code violations on the Atwood home construction project; as well as a promised appeal to the state review level by Buracker attorney T. Joel Francis on those five Warren County Building Code Appeals Board violations rulings. Atwood had claimed 60 violations based on an independent contractor inspection 12 to 14 months after she moved in to the new home.
The dispute revolves around Buracker Construction’s 2016 building of Atwood’s replacement home on Pilgrim’s Way in Bentonville. Atwood lost her previous home to fire.
In 2016 the County Building Code Department inspected the home upon completion, found no violations and a Certificate of Occupancy was issued on July 19, 2016. Fourteen months later after having moved in Atwood contracted a home inspection company not licensed in Warren County which reported 60 alleged code violations. Upon its first review the County Building Code Appeals Board initially cited 12 potential code violations, a number eventually reduced to six and Tuesday down to five.
A first appeal to the state level of that ruling resulted in the case being returned due to a conflict of interest determination. David Buracker, principal of Buracker Construction is on the county appeals board but recused himself from the case. The conflict was alleged by Atwood with Appeals Board member George Cline Jr. Buracker had sub-contracted Cline to fix those initial code violation determinations when Atwood refused to let Buracker to do the work. She claimed the Buracker Construction company wasn’t licensed in the county.
That led to a somewhat convoluted back and forth during a July hearing in which County Building Code Official David Beahm noted that Buracker himself and a related contracting LLC run by Martha Buracker were licensed. Beahm claimed the state typically allowed such licensing arrangements leading to his approval of Buracker to build in Warren County. Atwood disagreed and would not allow Buracker to engage in repair work or subcontract the repair work out to Cline.
When Cline participated in the 2018 county appeals board review, the conflict of interest claim was lodged by Atwood, leading to Tuesday’s board review of its initial ruling when Cline participated. Only appeals board members Arthur Saffelle, Dan Hotek and Wendell Hatcher participated in Tuesday’s hearing.
Buracker attorney Francis questioned Atwood’s motivation. He noted that the appeals board’s authority came down to ruling on violations and authorizing fixes of those violations.
“What’s the remedy – a violation is determined and has to be fixed or the responsible party has to pay to have it fixed,” Francis told the board, adding that he believed Atwood “is not looking for a fix, she is looking for a windfall – and that’s not coming from this board … That’s why we have judges … and I don’t think any of you want to be judges,” Francis told the board, drawing some smiles.
“I am not looking for a windfall,” Atwood responded during her rebuttal to the Buracker case. She pointed to the licensing issue which she said left her with no remedy from the state level, adding, “I’m screwed all the way around.”
She then attacked County Building Official Beahm – “I’m calling him out, he’s not doing his job … the board of supervisors should have fired him; it’s not just me. What if someone’s house burns down and kills them all? There are lives on the line and he shouldn’t be allowed to get away with it.”
The three-person board quorum then launched into discussion of its authority and perception of the building issues under review. Hotek and Hatcher agreed to uphold the board’s earlier ruling on five of the six violations found with Cline participating. So it would seem Atwood did better with the allegedly conflicted board member than without.
Board Chairman Saffelle dissented on the violations, stating he felt the determinations fell beyond the board’s authority.
A 10-minute recess was called to allow appeals board attorney Jason Ham to craft a Resolution reflecting the board decision. That decision by the 2-1 majority was that items referred to as numbers 3, 4, 7, 10 and 12 remained code violations as they stood by the 2009 Uniform State Building Code. Two related to work around a fireplace, the other four outside deck support.
The Royal Examiner’s camera was there:
Warren County Planning Commission: New warehouse coming to corridor; panhandlers are a nuisance
The September 11, 2019 Warren County Planning Commission started with the first public hearing from Sandra D. Isner. This was a request for a conditional use permit for private use camping. The property is located on Valley Retreat Road in Panhandle Valley Retreat Subdivision, identified on tax map 26C, section 1, as parcel 24, and is zoned Residential-One (R-1).
Warren County Planner Matt Welding explained to the Commission all the requirements for the special use permit. No one spoke for or against the special use permit during the public hearing. The Commission voted unanimously for approval and forwarded the application to the Board of Supervisors.
The second public hearing was to amend a County ordinance of Section 180-79 Warren County Code (Nonconformities) to identify structures as non-conforming based on their tax or permit history and to permit owners of a non-conforming manufactured home to replace the manufactured home with a HUD compliant manufactured home as required by the Virginia State Code. No one spoke for or against the amendment. The Commission voted unanimously for approval and forwarded the application to the Board of Supervisors.
Next up the Commission had a request to rezone about 20 acres from Agricultural(A) to Industrial (I). This property is located at 6475 Winchester Road and is located next to the RSW Regional Jail.
Also the applicant – Equus Capital Partners, Ltd, Newtown, PA is proposing to construct a 324,000 square foot building for a warehouse and distribution facility. The state they will employ full time, 100 people over 2 shifts. They estimate a 12-14 month build out, beginning in the Spring of 2020. This proposed use in in conformance with the Future Land Use Map.
Up next was an ordinance to amend Warren County Code Section 180-49.3 (Microbreweries) to included usual and customary activities associated with microbreweries and amendments to this Section in compliance with State code regulations and to amend Section 180-21 to add “activities and events associated with microbreweries other than those that are usual and customary for microbreweries throughout Virginia.”
Backroom Brewery, LLC requested a conditional use permit for events associated with a microbrewery. This property is located at 150 Ridgemont Road.
After some discussion, the Commission voted to authorize the advertisement for a Public Hearing on these items.
Commissioner Ralph Rinaldi brought up the issue of panhandlers at the Riverton Commons area and the nuisance it has become. He was concerned that any action taken might effect the Fire Department and their ‘boot’ drive. Rinaldi suggested that maybe a permit would be necessary. County Attorney Dan Whitten explain how the County handles the panhandlers in that area.
Whitten said his goodbyes to the Commission as this was his last meeting.
Watch the entire meeting on this Royal Examiner video:
Town vs. EDA civil case motions arguments pushed to October 9
Town of Front Royal Attorney Doug Napier and legal counsel for the Front Royal-Warren County Economic Development Authority were in Warren County Circuit Court Thursday morning to argue motions filings in the Town’s civil suit against the EDA. The Town initially filed for recovery $3 million in Town assets on June 21 and amended that amount up to as much as $15 million on July 12.
Former EDA Executive Director Jennifer McDonald is also named as a defendant in the Town litigation; however, she was not present and not represented by counsel at Tuesday’s hearing.
The fluidity of the litigation due to a constantly changing legal landscape impacting both civil and criminal sides of the equation were a primary point of discussion between the town attorney and Rosalie Fessier of the TimberlakeSmith law firm of Staunton, representing the EDA.
“This case is a very fluid one – players are added almost weekly as to who did what. We’ve put together a bare-boned complaint …that we’re going to continue to amend,” Napier told Judge Bruce D. Albertson.
Fessier countered that her client was the EDA, not individuals tied to the EDA. So, she told the court, the fluidity Napier addressed was irrelevant to the defense claim of sovereign immunity for the EDA as a public body created by legislative order for specific public functions.
“The issue is not how individual actors functioned or performed, the public body is still immune – though individuals could still be on the hook,” Fessier told the court in seeking a ruling on the defense’s sovereign immunity claim.
“I am concerned about ruling on a moving target … I find it premature to rule on the Demurrer … though I feel I have a handle on where everyone is going on this,” Albertson told the attorneys of the EDA’s claim of sovereign immunity. And well he might have that handle as both sides’ written arguments spell their positions out.
The EDA Demurrer states that as a legislatively-created entity that carries out a public governmental function, specifically facilitating the financing of land development for involved municipalities, the EDA itself carries that sovereign immunity designation.
“Plaintiff argues … that the EDA is not entitled to sovereign immunity because it vested the management of the EDA to the executive director,” Fessier wrote in response to Napier’s opposition filing to the EDA sovereign immunity claim. The EDA attorney then added, “However, a determination of whether an entity is a municipal corporation is governed by the enabling statutes, not on the actions of the entity in a particular case,” citing a “Richmond vs. Richmond Metropolitan Authority case from 1970.
After checking with his Harrisonburg Court Clerk’s Office by phone for his schedule about 30 days out to give attorneys time to submit further briefs on their motions or amendments to those motions, Judge Albertson set arguments for October 9, at 2 p.m. Both counsels said they were comfortable filing additional briefs by email to facilitate preparation for that hearing.
So sports fans, mark the afternoon of Wednesday, October 9, on your calendars as attorneys for both sides will come out “punching” for a favorable court determination on exactly where the legal liability for whatever happened to who knows how much Town managed, EDA handled, public funding lies.
Water and Sewer Tap Fees: Are they too high?
At the Town Council Work Session following the September 9th regular meeting, Council discussion included issues tied with the current water/sewer tap fees. Public Works Director Robert Boyer presented a comparison of Front Royal’s tap fees and service procedures with those of the surrounding towns and cities. A “tap fee” is a one-time charge designed to recover all or a portion of the costs (for material and labor) of connecting into the Town utility system.
The concern discussed at the work session were about the prices charged by the Town of Front Royal.
The overview of water tap services provided in the slideshow sparked a heated discussion about how can the Town reduce the amount charged for tap installation. Councilmen offered different explanations for the exorbitant price difference: Different towns meaning different demand per town perhaps?
Then Interim Mayor Matt Tederick chimed in: “the towns pricing (for tap fees) has been a sore in my side for over a decade as a citizen. When you have a house that is constructed and priced at a usury levels, with 10% or 12% of the price of the building going to a tap fee? That’s ridiculous.” Mayor Tederick also believed that the high price of tap fees contributed to the stalled growth in Town and the bureaucratic unfriendliness Front Royal has towards businesses.
Councilman Eugene Tewalt spoke up, objecting to the changing of tap fees on the grounds that it pays back for the infrastructure. Mayor Tederick respectfully disagreed with his argument. Vice-Mayor Bill Sealock also objected to Tewalt’s argument, wanting to gather more information on the details of tap fees. While Councilman Tewalt says that the fees go to pay infrastructure, the financing department disagreed, reporting that only a portion of the tap fees support the infrastructure.
Town Manager Joe Waltz reminded Council that the study being underwent by town on water capacity will take at least three months to complete. Mayor Tederick and Vice-Mayor Sealock want action sooner. “We need to build houses in this town, and tap fees are getting in the way of progress.” Council decided after this heated discussion that they would need to push the discussion to a later meeting, as more research needed to be done for anyone to make a clear decision.
Council also discussed the request for water and sewer services to be installed at 3853 Guard Hill road. A project that, if approved, would be scheduled to begin spring 2020, a request from Mr. Chris Ramsey. Mr. Ramsey requested that water and sewer services for the use in building a development on Guard Hill Road. However, according to Councilman Tewalt, the town does not provide both water and sewer, only water, “we are still waiting to receive information on water capacity for the Town.” The study on water capacity needs to be completed because of the growing concerns from citizens on the Crooked Run West project. The area that Mr. Ramsey is requesting receive water and sewer treatment is outside Town limits, meaning that Council would need to approve its servicing. The reason that the plot of land on Guard Hill Road is carved outside of the Town limits is unknown and has a vague history regarding its planning. Council determined that more research needs to be done before any action is taken, and not before the study on water capacity for the Town is completed.
After these issues were discussed, Council moved into a closed session discussing matters concerning the EDA scandal, police department financing, and personnel topics.
Confused as to what all the discussion about tap fees and water capacity studies mean?
Watch the Town Council work session in its entirety here in this Royal Examiner exclusive video and see it for yourself:
Citizen discomfort continues over Crooked Run West at September 9th Town Council Meeting
At the regular Town Council meeting on September 9th, Ms. Fern Vasquez addressed the Council on the matter of Crooked Run West. There is still citizen unrest at the idea of the development moving forward. Ms. Vasquez addressed these concerns in a forward way to Council, questioning why the demand for county growth outweighs the concerns of the citizens. “Is there data for the planning on water command broken down by commercial usage? Can the town provide for commercial and residential growth inside the town limits without annexation? Is there an excess of water that can be budgeted for the projected growth inside town limits? Has the Council made plans concerning the return-on-investment for this expensive procedure?” These were just a few of the pointed questions raised by Ms. Vasquez.
Ms. Vasquez presented an idea that she claimed would better serve the community. Ms. Vasquez pointed out that there is a growing trend in the 55+ age community moving to Front Royal, and there is much to be gained by commercializing to those who are retired in a 55+ development. Sounds like a better plan than Crooked Run West? It’s hard to say as the studies about the Crooked Run development are not yet conclusive.
Council responded with a brief announcement that they are moving forward with research to discuss these questions and concerns about Crooked Run West. In an interview with Interim Mayor Matt Tederick last month, we asked his opinion on the Crooked Run West issue:
Also covered in the Town Council Meeting were a variety of reports including a report from the Northern Shenandoah Valley Regional Commission (NSVRC). Executive director of NSVRC, Brandon Davis, addressed Council to talk about the issue of recycling. According to his report, based on global changes (remember China?) there have been challenges in local governments on the management of recycling, sometimes causing local governments to have to pay to remove them.
“We have reached the point where there is political will in the commission to move towards a regional study, forwarded by our engineers.” Stated Director Davis. Council supported this study, as it is a good idea to pull local communities together over the issue of recycling. This report will be completed over the next six months, and should provide recommendations on how the town can better handle the recycling issue.
The report from Warren County representative and General Services Director Brand Rosser discussed in-brief, various constructions, such as the completed construction on a new Taco Bell in Riverton Commons, updates on studies for Crooked Run West and other town projects, as well as an update on the construction of the hospital. The planned study on Crooked Run West comprises of a traffic impact analysis test that will be provided to Council. Ms. Rosser also updated Council on a flood plan in the event of a flooding disaster. Studies were done in which flood simulations were tested to see how a flooding disaster would affect the town so that the Town might be better prepared. Ms. Rosser also reported a variety of re-striping projects on roads where the lines have begun to fade.
Interim Mayor Tederick offered his own report by inviting citizen Kevin Rogers, owner and proprietor of Infotech Cellphone Repair located on Main Street, to speak to Council. Mr. Rogers had conducted a test to bring kids out of their home to play games in a social environment. This “Game Day” proved to be wildly successful, pulling in large groups of kids to play video games together instead of isolated at home. This game day event inspired him to propose a community gaming center to provide a social environment for kids who like video games. Mayor Tederick invited the Town to come for its grand opening Thursday, September 19th, which also happens to be the “National Day of Gaming.”
Council also approved several consent agenda items. There was a request for the purchase of a Toro Commercial Grandstand Model Stand-on Mower for the Horticulture Department in the amount of $7,854.70 as well as a request for a purchase of waterline upgrades on Steele Avenue, Highview Street and Parkview Drive in the amount of $422,140. Both items were approved by a unanimous vote.
Council also approved an ordinance to vacate Carter Street, requested by Councilman Holloway, which was approved by roll call. Councilman Latasha Thompson reminded Council and the Town that Holloway was not given any special treatment in regards to his request, as noted that he had abstained from voting in the past and now. Interim Mayor reinforced that idea because “Hollaway is a member of council, but he is also a citizen of this community and has been treated by a citizen of the community.”
Council approved a pair of ordinances for the sake of taking care of the Town’s bad debt. The amended ordinances 134-71 in an effort to decrease the towns bad debts was approved by roll call.
Council also approved the write-off for bad debts for the 3rd Quarter of 2019. This is the bad debt that council is trying to write off from utility accounts in the previous ordinance change. With this ordinance, Council wrote off 15,000, in a perfect world this would be a smaller number but over time Council hopes this number can be improved.
Vice-Mayor Bill Sealock addressed the Town audience: “We decided to report debt on a quarterly basis just like we do in the business world, in the past we were writing off hundreds of thousands of dollars. Hopefully now we can move forward to improvement.”
See the Regular Town Council Meeting in its entirety in this exclusive Royal Examiner Video:
Confusion abounds as BZA upholds Mendes appeal of flood plain violations
Confusion and a sense of vindication – though nebulous in its ultimate resolution – was the reaction of Nelson Mendes and his attorney Timothy R. Johnson in the wake of a 25-minute Warren County Board of Zoning Appeals hearing Thursday evening, September 5.
During that hearing a three-member quorum of the five-member BZA voted unanimously to approve Mendes’s appeal of an earlier ruling of the County’s then-Deputy Zoning Administrator Joe Petty that buildings on Mendes’s Agriculturally-zoned Stoney Bottom Road property in Thunderbird Farms were not complaint with County Codes regarding flood plain requirements. Petty explained to Royal Examiner that he was elevated from deputy to Zoning Administrator on July 1 as this situation was evolving.
In fact, it was Petty himself who presented the recommendation for reversal of his earlier stance rendered on May 1 that would have required $318 and change in permits alone to begin bringing the structures in question into compliance. Those structures include two metal buildings, one hoop greenhouse and one deck.
Petty’s statement to BZA Vice-Chair Lorraine Smelser, chairing the meeting in the absence of Chairman David Feiring, and members Robert Conway and Ron Wickenman was that the structures “will meet the planning department requirements.”
It reversed Petty’s draft statement of August 29 included in the meeting packet, which read, “Since the August meeting the Warren County Zoning Administrator is continuing to support the original determination that all structures … require permits in order to ensure that they meet the requirements for flood proofing as described in the federal guidelines.”
Thursday evening Petty said all that was required was a $10 zoning permit and a little additional information on the deck structure.
Mendes’s attorney was prepared to present a detailed explanation of his client’s case that he was not in violation of any county, federal or state codes in response to the draft statement of continued support of Petty’s original determination.
However, Smelser repeatedly ruled against that presentation request, as well as a request from the property’s former owner Susan Dujack, an attorney, to speak on Mendes’s behalf. Dujack told us Mendes bought the property from her in April 2017.
“The public hearing was closed at the last meeting,” Smelser informed Dujack.
“I’m not the public,” Dujack replied, later adding to this reporter that neither was Mendes’s attorney, whose presentation was apparently shut down on the same point of an already closed public hearing.
“I think we have enough information to proceed,” Smelser stated.
However, at times she appeared confused as to which stance Petty was now presenting to her board.
“There are still FEMA flood requirements I don’t see fulfilled here,” Smelser said at one point, adding to County Zoning Administrator Petty, “Are you saying we were wrong in our first assessment?”
But before this writer confuses you or himself anymore, we present this Royal Examiner video of the entire 25-minute performance whose ending no one seemed really satisfied with; as well as our post-meeting interview with Nelson Mendes and his attorney Tim Johnson in reaction to what happened and where they feel they now stand with the County on permitting – because as Smelser observes at one point, the BZA ruling favoring the Mendes appeal of the planning department’s zoning administrator does not compel other County departments such as building, not to make their own rulings regarding codes they may believe applicable to their departmental authority:
After the BZA meeting, Royal Examiner reporter Roger Bianchini spoke with Nelson Mendes and his attorney Tim Johnson: