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 In addition, the Town will be reviewing outdated policies and procedures to ensure consistency”.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.
Supervisors fund school division 75%, clear way for WCPS employee bonuses
The Warren County Board of Supervisors (BOS) voted unanimously on Tuesday, June 28 to approve the fiscal year 2021-2022 budget category transfer request that will allow employees of Warren County Public Schools (WCPS) to receive a one-time bonus for their extra efforts during the COVID-19 pandemic over the last school year.
“I am thankful to say we are moving forward with well-deserved bonuses for our teachers and staff,” Warren County School Board Chair Kristen Pence told the Royal Examiner today. “We truly appreciate all of the ways they went above and beyond for our kids and each other during the 2021-22 school year.”
WCPS Superintendent Christopher Ballenger also said he’s “pleased that the Board of Supervisors has allowed for the transfer of funds so that the bonus to all employees can be made.”
The School Board at its May 18 work session unanimously voted to give all full-time employees (as of May 31) a one-time net bonus of $1,500 and all part-time employees a one-time net bonus of $750 to acknowledge their hard work and efforts during the pandemic-impacted 2021-2022 school year. The money to pay for the bonuses will come from the board’s fiscal year (FY) 2021-2022 budget using unspent funds left over from unfilled positions, mid-year turnover, new employees entering on a lower pay scale, etc.
The School Board is categorically funded so had to request that the BOS allow the transfer of funds between categories to allow payment of the bonuses to all employees — including administrators, teachers, instructional assistants, nurses, bus drivers, and others.
But when the School Board took its request to the Supervisors at the June 7 BOS meeting, the request to transfer the funds was tabled and the School Board was asked to return to the June 14 BOS work session, where the request again got delayed.
The item was on the BOS June 28 agenda as an Unfinished Business item and several speakers had bones to pick with the supervisors about it.
Three teachers from Warren County High School and two members of the Warren County School Board on Tuesday urged the BOS to ensure school division staff receive proposed bonuses already approved by the School Board, and to fully fund the division as requested by the School Board.
During the first public comment portion of the BOS meeting, teachers earnestly requested that the BOS grant the School Board’s proposed bonuses for WCPS staff who continued working during the COVID-19 pandemic, stepping in to fill teaching vacancies and to maintain an effective and successful learning environment for students.
“I am nothing short of appalled by the actions of this board with respect to the teacher bonus currently on the table,” said Warren County Education Association President of Secondary Education Amy Flora, who is a math teacher at Warren County High School and a local resident.
“First, let’s stop calling it a bonus,” Flora told the BOS. “In reality, it is payment for uncompensated work with funds that are already available. The money in question is not a bonus. We earned it.”
Flora also said it was wrong for the BOS to try and tie the bonuses to their contracts for next year. “And should you deny this motion, do you think that word will not spread? Do you believe educators are not already watching and talking? Do you think your actions thus far have in any way bolstered the reputation of Warren County to any prospective or any current school employee?” she asked the Supervisors.
Due to the lack of adequate support both nationally and in Warren County, Flora said WCPS will continue to lose teachers “at an alarming rate.” She urged the BOS to support the teachers, staff, and superintendent of WCPS.
“Should you choose not to,” Flora added, “then you do not need to question why there are over 70 vacancies yet to be filled. In fact, you need not question why there are over 70 vacancies to begin with.”
Flora also said that if Warren County does not quickly and dramatically change the way it deals with the education system and begin making it a true priority, then she has “no doubt that a crippling staffing crisis will be inevitable.”
Two of her colleagues at Warren County High School and three other WCPS elementary school teachers echoed those sentiments, with one of them pointing out that Warren County is already known as “a teacher training ground for other districts.”
During Tuesday night’s BOS meeting, the Supervisors finally relented, though they still raised some of their own fiscal concerns, and essentially realized the bonuses were “all-or-nothing” — as Supervisor Vicky Cook called them — that depended on their approval.
Board Chair Cheryl Cullers and Supervisors Cook, Jay Butler, Walt Mabe, and Delores Oates were present, and all voted to allow the transfer of funds as requested by the School Board after a somewhat circuitous route to a motion being referenced into the meeting record.
“You now have your bonuses,” Cullers told the audience following the 5-0 vote and everyone clapped and cheered.
Warren County School Board Chair Pence, who is also a resident and mom of a rising 1st grader in WCPS, raised concerns with the Supervisors about a last-minute agenda addition by the BOS at around 3 p.m. on Tuesday to discuss the proposed fiscal year 2022-2023 budget for WCPS, as well as changes the BOS included as potential motions: either a $750,000 cut or a $3.5 million cut to the school division’s proposed budget.
Concerned about the current 70 unfilled teaching positions facing WCPS for the upcoming school year, as well as the division’s inability to retain teachers, Pence stressed that the School Board and WCPS Central Office staff worked diligently on creating a budget to wisely use funds.
Cutting $750,000 from the WCPS budget “would be very difficult for us; $3.5 million would be catastrophic,” Pence told the BOS, noting that likely more WCPS staff would be lost, as would any potential salary raises or scale adjustments for bus drivers and maintenance workers.
“I urge you to please reconsider these last-minute changes,” said Pence. “I was not aware [of the agenda changes], and I would have loved to talk to each of you prior to this evening’s meeting. It was quite a shock to see that.”
And the BOS “having to even consider bonuses for our teachers is a joke,” Besecker added. “It should be a no-brainer.”
Pence pointed out that WCPS will not be able to carry out its plans without full funding from the County, which makes up a significant amount of the overall WCPS budget. And she said the BOS already said WCPS would be level-funded, “so we’re not asking for additional funds from Warren County… we’re just asking you to accept the budget that we have adopted as our School Board.”
Antoinette Funk, also a Warren County School Board member and an educator who has lived locally for 25 years, agreed with Pence that the BOS should better support WCPS and the public education system. “Education is a powerful part of our community, and we have to support it”, said Funk. “We need to remain a community that continues to evolve.”
In the end, the BOS decided to go with another option offered by the County Administrator to categorically fund the school division’s proposed operating budget for the upcoming school year at 75 percent; to fully fund the WCPS capital improvements plan; and accepted the County’s budget as presented, according to Supervisor Oates’ motion.
Supervisor Cook, prior to the decision, stated that she did not want to borrow money to pay for the capital improvements requested by WCPS. “It’s not fiscally responsible,” Cook said, adding that the County is currently in debt for over $100 million. “And it’s because we keep borrowing… with most of it going to school capital improvements,” though Cook didn’t know the actual ratio.
Oates concurred, saying that “these bonuses” and capital improvements for WCPS “are not sustainable.”
“We can’t keep doing this,” said Oates, adding that the BOS will sit down with the supervisors-school board liaison committee “and try to work through this.”
In emails to the Royal Examiner on Wednesday, both Pence and Ballenger reacted to the BOS decision, adding that they remain hopeful for improved communication between their boards.
“I was shocked by the two options for the budget proposal. I was not contacted about the two proposals and there were no questions regarding how this would adversely affect the school division,” Ballenger wrote. “I’m glad we now have the opportunity to talk about this budget in more detail and discuss how this will impact the school system so that a sound decision can be made concerning the division’s FY-2023 budget.”
Wrote Pence: “While I cannot deny the surprise and disappointment I felt regarding the FY-23 budget discussion and action, I look forward to the conversations that lie ahead between the School Board and Board of Supervisors budget subcommittee.
“As I previously mentioned, the School Board’s proposed FY-23 budget offers amazing opportunities for WCPS and my hope is that by working together with the BOS it will gain full support,” Pence wrote.
The first round of Public Comments addressing the school budget issue begins at the 6:30 mark of the below-linked video; with a second-round following public hearings starting at the 2:29:35 mark. Supervisor and Public School staff discussion leading to the above-cited motion and vote on bonus funding continues between the 2:53:35 and 3:52:35 mark where a vote of approval of the $125,000 transfer is called. School Superintendent Chris Ballenger addresses capital improvement funding at the 2:50:50 mark, with a vote of approval coming at the 2:52:00 video mark.
Council approves first Short-Term Rental permit under new ordinance guidelines over some objections
As noted in our lead story on the Data Center permitting discussion, there were two issues involving the long-term impact on land use in town at the Front Royal Town Council’s June 27 meeting. The second of those, actually first up on the public hearing docket, was approval of Alexandria-based Bridget Scanlan’s Special Use Permit (SUP) request for a maximum four-person Short-Term Tourist Rental at 108 Virginia Avenue at its three-way intersection with First Street. A second Short-Term Rental permitting request for 201 East Main Street in the downtown mixed commercial-residential zoned area was also approved, with no speakers or opposition expressed.
However, that was not the case with the Virginia Avenue request which drew 17 public hearing speakers, 11 opposed to the use in the Residential-3 zoned neighborhood. Some neighboring residents, beginning with Viviano Rodriguez, cited concerns about public safety from short-term visitors being brought into the neighborhood. Setting the general tone for coming opposition speakers, utilizing charts and photos Rodriguez pointed to statistics indicating Air B&B operations leading to increased crime rates in some locales. He also noted a lack of sidewalks on the one-way, narrow downhill section of First Street intersecting with Virginia Avenue at Scanlan’s property, presenting additional danger, particularly to children and the elderly.
Noting the property owner’s out-of-county residence, Rodriguez warned that approval of this first permit under the Town’s new short-term rental code would set the stage for Front Royal to “become a property management city”. Rodriguez also said that Scanlan had been doing short-term rentals out of the property without a permit for a year, which he interpreted as disregard for codes and the law.
After four successive speakers against the permitting, Michael William was the first to raise questions about the public safety and neighborhood danger claims. He asked if there had been any complaints or police calls to the property when it was being operated previously without permitting. None were ever cited by any opposition speaker. Later, along that same theme next to last speaker Doug Ichiuji, a 20-year town resident and First Street neighbor of the applicant and her property, also raised issues about the general nature of many of the opposition remarks.
Ichiuji sad he had not seen the sort of traffic safety issues raised by previous speakers during his time there. He also pointed out council was being asked to judge Ms. Scalan’s application, not use it as a measuring stick for the overall value of short-term rentals as a special permit use. The Town passed a Short-Term Rental Ordinance with guidelines – Does Scanlan’s request fit within those guidelines was the question before council, Ichiuji pointed out.
Ichiuji estimated that the applicant spent over 50% of her time at her secondary residence on Virginia Avenue. He said he kept an eye on the property for her when she wasn’t there, as neighbors in the area do for each other. He pointed to nearby long-term rental apartments and wondered if their occupants were vetted as well as short-term rental clients often are. An answer was on the horizon.
Following Ichiuji to the podium was final speaker, applicant Bridget Scanlan. She assured council her plan in renting two of the home’s four bedrooms out to a maximum of four people at a time from late spring through autumn was not intended to make the neighborhood less safe. She purchased the home in 2018 to be an eventual retirement home, and as Ichiuji had previously told council, had invested in improvements to the property, with that eventual primary residence goal in mind. She also said she had met 13 of 21 nearby residents, all of whom had signed a petition of support of her application. She added that she was thinking of imposing a 5 or even 7-day minimum rental period, to minimize turnover and potentially attract renters with some business or other ties to the area.
Following the closing of the public hearing, several questions were directed by council to staff, including Planning Director Lauren Kopishki, Town Police Captain Jason Ryman, and Planning Commission Chairman Darryl Merchant, who was present as a citizen to address another public hearing topic as noted in our previous story.
Planning Director Kopishke said site inspection indicated that there was adequate on-site parking for four vehicles and that traffic was not seen as a dangerous consequence of the use by the planning department. In fact, responding to a question Kopishke said the applicant was “in compliance” with the town ordinance as approved by council.
Responding to questions about the planning commission’s recommendation of denial, Merchant said the major concern was that short-term rentals in town should be in owner-occupied residences to prevent the kind of out-of-area ownership/management trend Rodriguez had worried about. However, with Scanlan’s part-time presence estimated by her neighbor Ichiuji as high as 60% at times and her intent to only rent half of her property’s bedrooms, council seemed not to share that concern in this specific case.
As to crime and public safety, Councilwoman Letasha Thompson said she had researched the surrounding area and found that within a quarter-mile radius there “were no less than seven registered sex offenders, two of those having been convicted of offenses with children.” So, the question posed back to opponents citing public safety was who actually presents more of a criminal threat, nearby short or long-term renters? Thompson also said her research into Rodriguez’s presentation was that the increase in crime stats tied to Air B&Bs he cited all applied to one study of an area in Boston between 2011 and 2018. And the bottom line of that study, she pointed out, was not that short-term rentals attracted a criminal element, but rather that when there are many short-term rentals in one neighborhood, that neighborhood can lose its cooperative “community watch” ambiance and becomes more susceptible to criminality.
Responding to questions from Vice-Mayor Cockrell, FRPD Captain Ryman said the area was fairly quiet, and that it had not been a traffic problem area for 6 or 7 years. As an earlier speaker in support of the application pointed out, there apparently had been no complaint calls about 108 Virginia Avenue during the period of time Scanlan had been doing short-term rentals, indicating that neighbors weren’t even aware of the use over the months it was being done unpermitted. And they noted, upon learning of the permitting requirement, Scanlan has shut down the operation after six or seven months.
And with all these variables cited, council approved the Scanlan Short-Term Rental SUP application by a 5-0 vote, Gillespie absent.
Also on Monday night, following a Special Closed Meeting called for 6 p.m. to consider interviews and appointments to the Joint Tourism Board, on added regular meeting agenda item 1-b, appointed to 4-year terms on the Joint Tourism Board were Scott Turnmeyer, Jesse McClain, Hannah MacKinnon, and Gillian Greenfield.
Summary of action items and board reports of FR-WC EDA meeting of June 24
The Front Royal-Warren County EDA held the monthly meeting on Friday, June 24th at 8 AM. All Board members and the Executive Director were present.
Executive Director Joe Petty presented the request from the Town for a Utility Easement located on the Avtex site. The specific location is the parking lot area where the EDA and Laurel Ridge Community College (formerly Lord Fairfax) are in partnership where the school’s commercial truck driving class is located. The purpose of the easement is to correct storm-water management issues impacting 610-B and 612 W. 11th street. The board approved the immediate repair and replacement to the culvert and box to prevent further flooding of the 11th street area affected. The Board deferred approval of the of the proposed new 36-inch line until additional information on the easement is provided.
The Board also approved the release of Parcel 15 on Fairgrounds Road. The release was tabled at the May meeting because the Parcel 15 was not identified by address. The release is for 415 Fairgrounds Road which the EDA sold to Timberworks.
Jeff Browne, Chairperson, presented a request from Citi Bank to bundle the Royal Arms bond with other bonds to allow more funds available for affordable housing projects. After a thorough review by our attorney to insure there is no impact on the current bond agreement and a recommendation by the attorney to approve the board unanimously approved the request. The EDA board fully supports more funding for affordable housing.
Jorie Martin and Scott Jenkins presented the Avtex Committee report. The committee held two meetings in June to review past studies and recommendations. The committee decided to focus on the site in four parts. The first part is the Conservancy Side, second is the plant side, third side is the parking lot area adjacent to the police department and currently where the truck school is located, and the final piece is the West Bank across the river.
The Board discussed the committee report at length and and directed the committee to address questions raised and prepare a presentation at the July meeting. The board will be working with all stakeholders as the development moves forward. The full committee report is on the EDA website: www.wceda.com.
The board discussed integrating the EDA website with the county’s website. EDA Director Petty will be working with the county’s IT department and the EDA board on the project.
Joe Petty presented an update on the Small Business Loan Program. The accounts are in order and the EDA goal is to reestablish the Small Business Loan Committee and make the money available to small businesses in the town and county.
The board concluded with a closed session to discuss business opportunities and the pending litigations.
After discussion following comments of ‘private citizen’ Darryl Merchant on Data Center ‘by right’ concerns, council appears to shift course – better late than never
At its regular meeting of Monday evening, June 27, the Front Royal Town Council faced two issues with potential long-term consequences for the town’s future land use and utility infrastructure needs and costs. Those were public hearings on a Short-Term Rental Special Use Permit (SUP) request under the Town’s new ordinance guiding such quasi-commercial uses in Residential Districts; and on an Ordinance Amendment proposal that would allow Data Centers as a By Right use in Industrial-2 Districts.
In the first case, despite significant citizen and neighborhood opposition, countered by significant support, a 5-0 council majority (Gary Gillispie absent) decided to move forward with approval of the request within the new town ordinance guidelines. That approval was for Alexandria-based Bridget Scanlan’s SUP request for a maximum four-person Short-Term Tourist Rental at 108 Virginia Avenue at its three-way intersection with First Street.
However, on the second matter of allowing energy and water-gobbling Data Centers with a generally low job creation outlook as a “by-right” use rather than on a case-by-case Special Use Permitting review basis, council appeared to reverse its previously chosen course of action. After a first speaker in opposition to the “by-right” aspect of the ordinance proposal, followed by nearly unanimous council concurrence with that concern, council voted 5-0 to return the matter for additional review and re-advertisement for a vote on approval of Data Centers as an Industrial-2 District use by Special Use Permitting. We will focus on this second decision here while exploring the Short-Term Tourist Rental debate in a second story on Monday’s meeting.
The primary public hearing speaker was Darryl Merchant, who noted he was appearing as a private town citizen, not in his role as chairman of the town planning commission. But private citizen Merchant’s comments (beginning at the 1:37:15 mark of the below LINKED town video) echoed the recommendation of the planning commission, which was to require a Special Use Permit review of any Data Center application for a town industrially zoned location. Merchant began by commending the planning department staff for its background work in setting performance standards for Data Center reviews, adding, “I’m certainly not opposed to Data Centers other than I think it should be a special use and not a by-right use.”
Noting that Data Centers were currently a hot item on the economic development front across the commonwealth, Merchant noted that, unlike many established industrial-zone businesses, data centers were a relatively new and quickly evolving entity. He pointed to the generally huge size of the buildings – “They are massive both in square footage and in height” before moving to the utilities aspect: “Energy consumption is another concern we have. I know I’ve read some public comments from council regarding some of the electric blips (outages) that we’ve currently had; as well as water usage. You know water is a finite resource,” Merchant pointed out of the strain data centers can pose on a host municipality’s public utilities the entire community, industrial, commercial and residential, depend on.
He told council he believed the industry was taking steps to try and reduce that usage in the future, but cautioned that how successful those efforts would be is still an unknown. Merchant also observed that it was somewhat ironic the Town was placing Data Centers in the I-2 District with businesses generally providing a significant employment base for a community, while data centers generally provide a relatively small number of jobs for the local work force.
As to any fears that imposing the additional SUP review criteria might deter major players from considering Front Royal as a possible data center destination, Merchant pointed east. “You know Amazon just recently … submitted an application for a Warrenton site; and Warrenton does use the Special Use provision for approval,” he said in closing.
Having filed to run for a seat on council in November’s Special Election to fill the remaining two years of Scott Lloyd’s vacated term (current appointee Amber Morris filed to run in the three-seat general election), Tom Sayre followed Merchant to the podium for one of his three campaign, we mean public comment, trips to the podium. Sayre acknowledged his agreement with Merchant’s observations on the low employment numbers data centers provide. He estimated an average of 5 to 20 jobs, with 20 being a “high side” estimate, he observed. “So, I suggest you take a hard look at data centers,” Sayre concluded.
The public hearing completed, Vice-Mayor Lori Cockrell again chairing a meeting for absent Mayor Chris Holloway, put the matter to council. Amber Morris made an initial motion to “defer the item to a work session”. Cockrell seconded the motion, opening the matter for council discussion. Morris opened that discussion (at the 1:42:55 mark of linked video) noting a 20-year gap in council review of Industrial-zoned properties in town, calling them somewhat “random” in nature at this point. She also suggested not jumping the gun on major zoning decisions with the current Town Comprehensive Plan Review underway.
In turn, Vice-Mayor Cockrell (video 1:44:08), Joseph McFadden (1:45:55), Zach Jackson (1:46:47) agreed with the planning commission and private-citizen Merchant suggested change to requiring Special Use Permit review for data center applications into I-2 zoned properties.
But with council poised to vote on Morris’s original motion to return the matter to council work session discussion, Assistant Town Attorney George Sonnett suggested more precise motion wording to forego the necessity of a second public hearing, with the advertised public hearing having been closed. Morris gave it another try, amending her original motion to defer a vote on the proposed ordinance amendment to the July 25 council meeting following discussion at a July 11 work session. With council again poised for a vote, McFadden, who had seconded Morris’s reworked motion, wondered at the necessity of a month’s delay on a vote.
Noting an apparent consensus on the change to requiring the SUP review for data center applications, why not just go ahead and vote on an amended motion requiring SUP review of data center applications, McFadden asked. Town Manager Steven Hicks replied that the additional time would allow staff additional time for a review of standards, which led Morris to point to the planning staff review and subsequent planning commission recommendations that had already been made. McFadden also worried that “if we kick it down two meetings … politics comes into play …” as to influence on council’s decision-making process.
But after a brief conversation with Assistant Town Attorney Sonnett, Town Manager Hicks informed council that due to the way the proposed ordinance amendment had been advertised as a vote on by-right approval, a newly worded proposal would have to be advertised for another public hearing anyway. With additional questions looming (1:52:20), Hicks elaborated that following council work session discussion, the staff recommendation would be that the ordinance amendment proposal be returned to the planning commission. Planning Director Lauren Kopishki noted that would likely throw the matter into August for council approval of an adjusted ordinance amendment on data centers.
So, Morris went again, withdrawing her earlier amended motion to be replaced by one reading “That council send back Public Hearing item 7-E, an Ordinance Amendment to Town Code Chapter 175 to add Data Centers to make this by Special Use Permit only.” That motion was approved by a 5-0 vote – and here we go again.
Town Council-Town EDA Board discussion of future operational dynamics recalls recent past experience – but what can be learned?
During a joint meeting of the Front Royal Town Council and the recently created unilateral Front Royal Economic Development Authority (FREDA) Board of Directors on Wednesday, June 22, the two bodies reviewed the draft Bylaws developed for FREDA operations and any necessary adjustments to Town Code Chapter 16 regarding operations of a municipally created Industrial Development Authority (aka Economic Development Authority).
Dominating the conversation were issues of:
1 – Operational autonomy of FREDA in conducting its economic development initiatives based on guidelines provided by the town’s elected officials. Given its “marching orders” by council, would the FREDA board have to first bring every step toward economic development or retention to council for an “Okay” prior to moving forward, FREDA Board Chairman Rick Novak asked.
2 – Potential conflicts of interest of town staff in serving in roles under the auspices of both the town council and FREDA Board of Directors. Town Manager Steven Hicks also is serving as executive director of FREDA. Councilwoman Amber Morris asked of potential problems in that regard, what if in his EDA role Hicks participated in a closed meeting with a prospective FREDA client in which there was a non-disclosure agreement. Would that prevent the town manager from reporting to council relevant information on the FREDA initiative. Morris, who spearheaded the conflict of interest discussion, also questioned the advisability of having the same legal counsel represent both the Town and FREDA.
3 – Possible Town financial liability for its EDA’s actions, investments, and contractual arrangements.
4 – And an Operational Budget for FREDA to be determined by the town’s elected officials. Created as an economic development agent for the Town of Front Royal, FREDA is starting out with no financial or real estate assets of its own.
Town taxpayers might recall that well over a decade ago after council voluntarily withdrew its previous level of direct oversight of FR-WC EDA operations, the County took over full operational funding of the half-century old joint Town-County EDA. At that point the Town’s financial obligation revolved around its debt service on projects the FR-WC EDA oversaw and financed on behalf of the Town, like construction of the new police station.
As recently noted at a Warren County Board of Supervisors meeting by County Administrator Ed Daley, the FR-WC EDA still exists legally, just without any participation on the town government side. FREDA’s creation as an alternative to continued Town involvement in a post-scandal, restructured joint Town-County EDA, came in the wake of a council majority’s decision during the approximate year-and-a-half interim mayoral and town manager tenure of Matt Tederick to refuse offered good-faith negotiations to determine who was owed what in the wake of the FR-WC EDA financial scandal uncovered in 2018.
Rather, over the objection of then-Mayor Eugene Tewalt, a Town leadership majority decided to initiate hostile litigation against the newly restructured FR-WC EDA seeking self-determined losses and claiming a lack of liability for any financial scandal losses. Anyone recalling a town council majority’s approval of then-EDA Executive Director Jennifer McDonald’s request for what ended up being a four-month $10-million “bridge loan” (the last 3 months without interest compensation) to enable the ITFederal bank loan might wonder how that lack of liability argument might go in the courtroom.
Talk about potential legal advice conflicts of interest – THERE might be a glaring example of one that might have been. The now-dueling civil litigations between the Town and FR-WC EDA remain unresolved at the Circuit Court level. The $10 million ITFederal loan is the largest single claim in the FR-WC EDAs’ civil litigation attempt to recover about $21-million in believed embezzled or fraudulently attained assets.
But it wasn’t past actions leading to the creation of FREDA on the table at Wednesday’s joint meeting, as noted above, it was FREDA’s operational, structural, and financial future. And with decisions unresolved on several fronts, the two boards scheduled another joint meeting for Wednesday, July 13, tentatively from 4 p.m. to 8 p.m. Council present, Mayor Holloway and Joe McFadden were absent, agreed that most, if not all, major decisions should be made by the end of July.
“I agree, I don’t want to take two years to set this up,” Councilwoman Morris said in support of Letasha Thompson’s suggested July deadline on budget and staffing decisions.
Hooked into the meeting remotely was Interim Town Attorney James “Jim” Cornwell Jr. Cornwell referenced experience with 14 jurisdictions and their EDAs, only one of which had separate legal council than its founding municipality – “But it’s up to you,” Cornwell told council of potential conflict of interest issues.
The Town’s experience with the still unresolved $21 million joint Town-County EDA financial scandal and resultant civil and criminal litigations was also discussed. Cornwell suggested not overreacting. “I know that the Warren County-Town of Front Royal EDA, to use the vernacular, went to hell in a hand-basket. There are probably (here his remote transmission went garbled, but seemed to say – ‘a hundred or more’) EDAs, IDAs across Virginia that function very well as independent entities … and in the public good. They stay in contact with their appointing entities, I think I told you once before, the only way you can control the entity is by putting people on there you trust to do the job; and second by financially controlling them.
“I know there is some concern, and I recognize that,” Cornwell continued of the joint EDA financial scandal experience, adding, “But by putting good people on the EDA you won’t have those problems … You don’t want to be too gun-shy because of what happened before.”
“Thank you, Jim, I agree,” Thompson replied, followed by Vice-Mayor Lori Cockrell, chairing the meeting for the absent mayor, to add her thanks to Cornwell for his input. However, the vice-mayor added this observation: “Even though we don’t anticipate the same thing, obviously is going to happen here, we do answer to our citizens, and they are gun-shy, for the right reasons I might add.”
Berry Brown v. Town of Front Royal case dismissed, but who won?
Nearly 18 months after former Clerk of Council Jennifer Berry Brown filed a federal lawsuit against the Town of Front Royal for alleged sexual harassment by former Front Royal Councilman and Vice-Mayor William Sealock and subsequent wrongful termination by the Town, the case has been dismissed, after Brown’s legal team filed a stipulation of dismissal in the U.S. Western District of Virginia Court in Harrisonburg.
Attorney Timothy E. Cupp, of Harrisonburg firm Shelley Cupp Schulte, P.C., filed a stipulation of dismissal on Berry Brown’s behalf today, which stated, “Plaintiff, Jennifer Berry Brown, and Defendant, Town of Front Royal, Virginia, by and through their undersigned counsel, hereby agree and stipulate, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), that the entire action and all claims in Plaintiff’s Complaint are hereby dismissed with prejudice as to future action, with each party to bear her or its respective costs, expenses, and attorneys’ fees.”
Royal Examiner reached out to Ms. Berry Brown and Mr. Cupp; both declined to comment. The Town of Front Royal’s attorney in the case, Heather K. Bardot, did not respond to a request for comment.
Often, a stipulation of dismissal is filed in cases where both parties come to a settlement. A former town council member familiar with the case said recently they believed that the town’s legal team was trying to reach an agreement with Ms. Berry Brown, which would end the lawsuit without going to trial.
Berry Brown filed a civil complaint in federal court on Jan. 4, 2021, claiming sexual harassment by former Front Royal elected officials and wrongful termination from her job as clerk of council as retaliation for filing a complaint with the Town Human Resources Department.
A civil jury trial was slated to be held May 31-June 3, in U.S. District Court for the Western District of Virginia in Harrisonburg before a series of March filings caused U.S. Judge Thomas T. Cullen to continue the trial. It was initially set to begin on February 22, 2022, before being continued to May 31.
Interestingly, at a Special Meeting called prior to a Monday, June 13 work session, Town Manager Steven Hicks presented a request to the Front Royal Town Council for a late Fiscal Year-2022 Budget Amendment to allow the transfer of $150,000 from General Fund Reserves for the payment of “legal fees” through the Town’s liability insurance carrier. The motion was subsequently approved.
Royal Examiner’s Roger Bianchini, who covers the council, wrote in a recent story, “There was no discussion of the matter prior to the reading of the motion and vote. The staff agenda summary and prepared motion note that the $150,000 payment will be made to the Virginia Risk Sharing Association (VRSA) ‘for legal fees’ related to litigation.” VRSA was named as a second respondent in the Berry Brown lawsuit against the Town and has been represented by Andrew S. Willis and John B. Mumford Sr., of Glen Allen.
Bianchini followed up with Steven Hicks, town manager, who deferred a question on the destination of those legal fees to Finance Director B.J. Wilson, who said that further information on the $150,000 payment to VRSA was not available.
Bianchini, who contributed to this story, said Wednesday, “Authorization of $150,000 in additional fees to the Town’s liability insurer and co-respondent in the Berry-Brown case, followed a week later by an agreed-upon dismissal – coincidence?”