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Town Administration beats Planning Commission to punch – releases report on Holloway LLC’s subdivision approval process Wednesday afternoon

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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.

MEMORANDUM

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

1. SUMMARY:

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.

______________________________________________________________________________

FOOTNOTE

7. APPLICABLE LAW IN TOWN CODE :

148-130 ADMINISTRATION

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
Added.]

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.)

History

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:

[1] Location map showing existing zoning and ownership of property and adjacent land;

[2] Identification of principal site features, including topography, steep slopes, wetlands, wooded areas, archeological areas, floodplains, and other features of significant public interest.

[3] Relationship of the proposal with surrounding utilities and public facilities to serve the tract at the ultimate proposed densities;

[4] A general layout of the road system within the project, including all proposed private and public streets and land uses.

[5] 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.

[6] A description of the provisions for continued maintenance of any proposed private street.

[7] 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

148-900 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.

 

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Staff briefs Supervisors on Reassessment Appeal process and scheduled Airport Capital Improvements – And about that proposed Code of Conduct…

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How to behave and dress as an elected or appointed county official; and how to appeal real estate reassessments one feels were unjustly high, were among items reviewed at a January 31st work session of the Warren County Board of Supervisors. Also on the agenda were scheduled Capital Improvement Projects (CIPs) over the next six years at the County-overseen Front Royal Airport (FRR). Prominent in that presentation by Public Works Director Mike Berry was a chart illustrating which projects would be eligible for potentially large infusions of federal and/or state funding – the answer being all but one of 13 listed projects.

Public Works Director Mike Berry and Finance Director Alisa Scott handled respective briefing duties, Scott standing in for Commissioner of the Revenue Sherry Sours, on the General Reassessment impact on tax rates and the Assessment Appeal process; Berry handled pending Capital Improvements Projects at the local airport and availability of federal and state funding for those projects over the next 6 years. Royal Examiner Photos Roger Bianchini

With a February 3rd deadline to file appeals on real estate reassessments looming the most pressing of these issues, at least for landowners, may have been notice of the February 3rd filing deadline along with relevant information to present to the appeals board when one’s hearing is scheduled. It was also noted that those reassessment appeals hearings are slated to be completed by February 17th. That deadline is to help the supervisors have final numbers upon which to base the legally required resetting of an “equalized” real estate tax rate for the coming fiscal year. As previously reported, when real estate reassessments result in a greater than one-percent increase in municipal real estate tax revenue, a public hearing must be held to determine at what tax rate revenue would become “equalized” to what it was prior to the reassessment. The current Warren County real estate tax rate is 65.5 cents per $100 of assessed value. New assessments have been cited by some county staff in the +40% to +60% range from previous levels.

Any increase in county government revenue from the equalization number the board resets the real estate tax rate at is treated as a tax increase. And if there is one thing the current county board majority has made clear, it is that they are not prone to raise taxes, increased public service costs due to soaring national and global inflation rates or not.


Code of What Conduct?

Which perhaps gives us a nice segue into that “how to behave” work session topic – a Code of Conduct to be adopted by the board for its own membership, and one for its appointed boards, commissions, and committees. The agenda item was presented by County Administrator Ed Daley. He noted those drafts were based largely on a Manassas City Council Code of Conduct included in the agenda packet. A number of other Virginia municipalities’ codes were also included for review by board members. Daley told the board they could tweak and approve the drafts as separate items or consolidate them into one with wording changes noting the single code applied to the supervisors, their appointed boards, commissions, and committees, as well as employees, if so desired.

County Administrator Ed Daley presented draft Codes of Conduct to the board based on the City of Manassas’ existing code. One goal appears to be to take a harsher verbal edge off critical comments aimed public officials’ way, particularly by people they have appointed to various oversight entities.

The overall intent of the recommended Code of Conduct appears positive – its “Introduction” straight out of the Manassas City Code of Conduct states: “The intent of the Code of Conduct is to encourage fair, ethical, and accountable local government in the County of Warren, Virginia. The community expects its elected officials, specifically the Board of Supervisors, to be objective, and thoughtful in their judgement and actions and to conduct County business openly and in an atmosphere of respect and civility …” It continues to note an expectation that public officials “comply with both the letter and spirit of the laws of” the nation, the state, and adopted municipal codes and policies.

Mixed Message: Full Understanding but No Questioning?

However, one of the numbered Code of Conduct categories attracted our attention. That was number 5 in both the elected and appointed board drafts under consideration for approval by the supervisors, perhaps as soon as their next meeting of February 7th. It reads in its entirety below with portions that attracted our attention underlined:

“The professional and personal conduct of the Board of Supervisors/Members (of appointed bodies) must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of the other members of the board/commission/committee, elected officials, County staff, or the general public.

Being taken under consideration immediately after a discussion of an agenda item that will be before the supervisors at their February 7th meeting concerning “Board Goals” for the coming year, including gaining an “understanding of the full extent” of the FR-WC EDA financial scandal and its numbers, we wondered how such a full understanding might now be achieved, or for that matter ever have been uncovered, if “personal charges … upon the character or motives of other members, elected officials, County staff, or the public” were to be prohibited then or now.

As a reminder, the circa 2014-2018 then joint Town-County EDA financial scandal alleged an estimated $26 million in FR-WC EDA, County, and Town assets moved to personal benefit by former EDA Executive Director Jennifer McDonald and believed co-conspirators in the public and private sectors. McDonald made an out-of-court, no-fault settlement for the transfer of an estimated $9-million in real estate assets to the EDA. She is still facing trial on multiple related criminal charges in federal court in the Southern District of Virginia (Harrisonburg) now scheduled for May. In civil trials of alleged co-conspirators last summer, jury liability verdicts were handed down against five people and two companies totaling just over $15.1 million, raising the total of assets recovered, at least on paper, by the EDA to just over $24.1 million.

Judge notifies involved parties of denial of all defense motions to overturn jury verdicts in EDA civil liability cases

In introducing the Code of Conduct discussion County Administrator Daley observed, “The board had discussed in Closed Session some concerns that they had for the actions and statements of some people representing portions of the County in terms of boards and commissions. And upon the recommendation of your attorney, it was felt that we should have a Code of Conduct as to what the board expected for the behavior of their representatives.”

Questions OK, but watch how phrased

We initially contacted Daley about the seeming paradox of seeking full understanding of situations like the EDA financial scandal but limiting “personal charges … upon the character or motives of other members, elected officials, County staff, or the public.” Daley said he believed the intent was not to limit questions being asked about questionable situations, but rather to control the public tone of that questioning as reflected in the wording of “refrain from abusive conduct … or verbal attacks” regarding such questioning. If the draft code needed some tweaking with legal counsel to assure that legitimate public questioning presented in an approved manner were not prohibited, that could be addressed prior to a board vote to approve a final draft, Daley reasoned. Presentation of a Code of Conduct was cited as one of a 20-item Consent Agenda in the cover sheet for the 7 p.m., February 7th board of supervisors meeting.

Upon reading referenced Code of Conduct point 5, we flashed back to appearances of Shenandoah Farms Sanitary District Advisory Committee (SFSDAC) Chairman Sarah Saber, most recently at the January 17th supervisors meeting. At that time Saber followed a non-County-appointed citizen, Property Owners of Shenandoah Farms (POSF) Chairman Tracie Lane to the Public Comments podium. Lane was critical first, of the board’s lack of responses to her requests for meetings to re-establish dialogue between POSF, the former Sanitary District management entity (1995/96 to 2011) and later advisory board to the supervisors on Farms Sanitary District matters (2011 to 2022); and second, on specific questions concerning County use of Farms Sanitary District tax revenue. She also challenged board comments indicating a failure on her part to respond to a request for a list of POSF-owned “Common Properties” for public use in the Farms. She said she had a copy of her response with the linked information and board recipient list. Saber continued that criticism on points she has previously raised, also on non-responsiveness by the board to specific questions on past County use of Farms Sanitary District tax revenue, among other Farms infrastructure decision-making issues by this board and involved County staff.

On Jan. 17, POSF Chairman Tracie Lane, at podium, began the critical appraisal of the board’s lack of responsiveness, in her case to inquiries about meeting to re-establish communications with former Farms Sanitary District management and advisory entity POSF, and queries about past Farms Sanitary District tax revenue uses. Below, board-appointed Farms Advisory Committee Chairman Sarah Saber echoed some of Lane’s remarks on the board’s lack of responsiveness, in her case regarding financial dynamics of staff and board decisions on higher-cost road infrastructure projects, as well as similar unanswered questions about the supervisors past movement or use of Sanitary District tax revenue.

“The fact that you all are unwilling to answer questions is reprehensible. It is disgusting. And it speaks of an absolute disregard of any citizen requests; and partnerships with citizen advisory boards; any transparency. It speaks volumes,” Saber concluded as her time expired drawing scattered applause from some citizens present and a warning by Board Chairman Vicky Cook against demonstrations of support for speakers.

Public Hearing speakers raise issues on Shenandoah Farms Sanitary District management and tax revenue usage

One might recall that previous public comments by Saber on problems she has had getting responses from the Board’s Farms Advisory Committee representative Walt Mabe, and others, to questions she believes are crucial to doing the job she and her fellow committee members were appointed to do, have been even more scathing and occasionally expletive not-deleted.

So, will an approved County Code of Conduct encourage more politely phrased exchanges resulting in improved communications between the supervisors, appointees, and citizens seeking answers to questions relevant to their positions and perspectives?

And will a finally drafted Code of Conduct encourage the kind of “fair, ethical, and accountable local government” cited as a desired outcome of a County Code of Conduct? For it is there, particularly regarding financial “accountability” that some, like POSF Chairman Lane and current County Farms Advisory Committee Chairman Saber, have cited examples they believe indicate the supervisors and involved staff have fallen short on over the past three years.

Saber and the supervisors face off during public comments on Jan. 17. Chairman Cook cautioned members of the audience from applauding at conclusion of Saber’s remarks.

For if at Daley’s referenced Closed Session, verified as the January 17th one initially called as a later cancelled joint meeting with the Shenandoah Farms Sanitary District Advisory Committee, board concerns were raised about “the actions and statements of some people representing portions of the County in terms of boards and commissions”, as one can see from the above-cited Public Comments, some involved citizens have similar concerns about the actions of, and a perceived lack of responsiveness and accountability, from their elected representatives.

As of publication Town-County contracted meeting filming entity Swagit had yet to post the January 31st work session video, according to County Clerk Emily Ciarrocchi due to GB (Gigga-Byte I believe) sizing issues with the video. From our audio recording of the work session, we would estimate that if and when posted, the Code of Conduct discussion will begin shortly after the half-hour mark of the video; and the assessment and appeals discussion shortly after the 40-minute mark. The airport CIP discussion opens the work session.

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EDA in Focus

FR-WC EDA moves to guarantee records protection during transition to County IT oversight, goes to Closed Session on litigation, business matters

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The Front Royal-Warren County EDA held a special meeting on Wednesday, February 1, 2023, at 3:00 PM at the EDA Office on Kendrick Lane. All five Board members, legal counsel, and the County Director of Economic Development were present.

The meeting began with the discussion of moving the February Regular Meeting from Friday, February 24, to Tuesday, February 28 at 8:00 AM. The schedule change was unanimously approved.

Following the schedule discussion, the Board requested legal counsel to draft an agreement to protect EDA records in order to move forward with the information technology transition with the County.

The Board concluded the meeting with a closed session to discuss potential disposition of real property to business prospects, the small business loan committee applications, and legal consultation regarding active litigation. There was no new business following the closed session.


As noted above, the next regular monthly Board meeting will be held on Tuesday, February 28, 2023, at 8:00 AM at the Warren County Government Center.

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EDA in Focus

County overseen FR-WC EDA reviews Conservancy Park status, Small Business Loan Committee applications, future property marketing options

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The Front Royal Warren County EDA held its monthly meeting on Friday, January 27, 2023, at 8:00 AM at the Warren County Government Center. Four Board members, legal counsel, and the County Director of Economic Development were present. Chairman Jeff Browne participated remotely.

The regular meeting began with a discussion regarding a potential utility easement through the EDA’s Happy Creek Technology Park property to a neighboring parcel. The proposed development is in its early stages although the utilities could create a loop through the business park while also accommodating any potential future development on adjacent properties. The Board of Directors has concerns with any easements that may encumber any EDA owned property, however, they are open to future discussions if it can create an overall cohesive development area.

As part of the Committee Reports, Jorie Martin and Joe Petty provided an update regarding the Avtex Conservancy Property and recent presentations to the Board of Supervisors and Town Council. Mrs. Martin mentioned the interest in issuing an RFI (Request For Information) for the remaining property, and a work session may be scheduled to review the document.

Treasurer, Jim Wolfe, and the Director of Economic Development Joe Petty provided an update on the financial statements and the Board of Supervisors will soon begin having meetings regarding the Fiscal Year 2023-24 budget.


Royal Examiner file photo of EDA Board meeting, with full board and county director of economic development present.

Staff from the Virginia Economic Development Partnership (VEDP) provided a presentation regarding the Virginia Business Ready Site Program (VBRSP) and ways the EDA can position its available properties. The discussion gave the Board better insight into the types of businesses interested in locating in Virginia and types of assets they look for in property.

The FR-WC EDA is still looking for applicants to take part in the Small Business Loan Committee. The EDA approved four (4) certificates of satisfactions for previous loans that have been successfully paid off. The Board also approved two amendments to existing leases for C-CAP and the Happy Creek Technology Park Grazing Lease.

The Board concluded the meeting with a closed session to discuss potential disposition of real property to business prospects, the small business loan committee applications, and legal consultation. No new business followed the closed session.

The next regular monthly Board meeting will be held on Friday, February 24, 2023, at 8:00 AM at the Warren County Government Center.

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By 3-2 vote Town Council votes to seek additional information on Holloway alley ‘vacation’ request

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Following a public hearing at its meeting of January 23rd, a divided Front Royal Town Council voted to appoint ostensibly neutral “viewers” with experience with vacating public alleys to visit and examine a Town alleyway members of former Mayor Chris Holloway’s family are seeking for “vacation” – no, not to sunnier shores, but rather into the ownership hands of Mr. and Mrs. William (father of Chris) Holloway and Mr. and Mrs. Wade (brother of Chris) Holloway – for their personal use.

Council’s 3-2 vote, Skip Rogers and Bruce Rappaport dissenting, to seek more information from “neutral” observers came after hearing from eight citizens during the public hearing. And if not neutral, those town citizen stakeholders opposing the requested privatization of the Town alleyway into the two Holloway families’ hands did bring their own histories of alleyway usage and maintenance to the table.

Seven of eight speakers, either residents whose home properties abut the alley or members of the Church of the Brethren, which also abuts the alley, all urged denial of the request so as not to limit their use of and rear-access to their properties and homes from the alley between 12th and 13th Streets off of Virginia Avenue. On the church side, use of the alley to facilitate emergency evacuations of as many as 70 to 80 members, were an emergency to occur during Sunday services, was noted.

Perspectives on the non-paved alleyway being sought for vacating and ownership by members of the Holloway family. The first shot is looking west from Virginia Ave. Church of the Brethren is to the right. The second shot is taken from the Church of the Brethren parking lot at the midway point of the alley, and the third shot shows the far end of the alley at adjoining properties. Whoever owns it, it looks like a little entrance-way maintenance is in order.


The only public hearing speaker for the proposed vacation to the Holloway family was Joe Silek Jr., the applicant’s legal representative. The applicants themselves did not address council at the public hearing. Silek told council that his clients had been “taking care of the alley for years.” However, one Church of the Brethren member, Lee Keeler, noted that the church had contracted Lee’s Lawn Care for mowing the dirt and grass alleyway, and other neighboring property owners noted their own activities in maintaining the alley for ease of access to their properties for moving heavy materials or furniture through closer rear entrances.

One neighboring speaker, Wayne Woodward, said he liked the Holloways but was against privatizing the alley for their personal use. He said he asked Wade Holloway if it was really necessary and why they were asking to transfer ownership of the long publicly accessible Town-owned alley to themselves. “Because we can,” Woodward reported of the recent mayor’s brother’s reply. Chris Holloway left office at the turn of the year after deciding not to run for re-election last year. His previous year-plus in office had been marked by public debate following staff revelations that he and fired former Town Manager Steven Hicks appeared to use their respective offices to pressure Town Planning Department personnel into hurried, out-of-process approval of non-code compliant permitting of a six-unit residential building project of the mayor’s construction company near South Street in town.

The reason a council majority felt the need for additional information than that gathered from staff, involved citizens, and the applicant prior to a vote of approval or denial was addressed by Amber Morris, who, after some discussion with Town Attorney George Sonnett, made the motion to seek more information prior to a vote.

Amber Morris made the motion to contract third-party ‘viewers’ to report to council prior to a vote on approval or denial of the Holloway family request to acquire ownership rights to the unpaved Town alleyway utilized by neighboring property owners, including Church of the Brethren members.

After noting options to approve or deny the project directly following the public hearing, Morris said, “And then the third motion, which is the motion I made, which allows us to appoint viewers that have experience in vacating alleyways. We do have feedback from town staff regarding utilities and things of that nature, and we do have feedback from adjoining property owners and some of the stakeholders in that area. And so the motion that I’ve proposed would allow an unbiased presentation and report of factual information about vacating this alleyway.”

How that “unbiased” report will be weighed by council against the subjective explanations of neighboring property owners and church member stakeholders heard at the public hearings as to the reasons for their opposition based on long-time use of the public right-of-way remains to be seen. But from their pre-vote remarks, it appeared Rogers and Rappaport were both ready to cast votes of denial of the request that evening.

Councilmen Skip Rogers and Bruce Rappaport, latter below, told their colleagues they believed enough information had been acquired through impacted citizen input, staff reports, and applicant submissions to reach a decision of denial of the vacation and acquisition request of the Holloway family members that evening. Three of their colleagues did not agree.

“I’d really like council to consider who is benefiting from vacating the property,” Councilman Rogers said preceding the vote, noting a definite benefit to the applicants.

However, he added, “Who is not benefiting from the property vacating are those folks who have been using that property, that right of way if you will, for many, many years. So, I ask council to consider that as well,” Rogers concluded.

Rappaport followed Rogers comments from a similar perspective: “The alley has been as it is for 28 years, that’s been made clear. I believe that the alley should remain open for public use. It’s clear that the church has said that they use it, and they maintain it as well as the applicant Holloway. And I just have a problem with the vacation process when it’s clear that there are, even though it’s clear that many of the (church) members don’t live next door, they still have a right as users of the alleyway. And I think it would be best to leave it open,” Rappaport said in joining Rogers in favor of a vote to deny with the information council already had.

Click here to see the public hearing and subsequent council discussion beginning at the 38-minute mark of the Town video; Mayor Cockrell calls for a vote on the motion to hire neutral viewers to develop a report on the alley vacation application at the 1:16:15 video mark.

 

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Town Police Chief Magalis acknowledges departmental personnel movement and promotions accomplished in-house

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At the January 23rd Front Royal Town Council meeting, Front Royal Police Chief Kahle Magalis introduced officers recently promoted in the department and others recently brought on board. Near the meeting’s outset (beginning at the 6:30 mark of the Town video below), Chief Magalis brought six of seven FRPD officers forward for acknowledgment. Now-Major Jason Ryman was not present for the presentation.

“I always look forward to this type of a presentation where we can talk about some new folks that we’ve brought on and folks that we’re moving into different areas of the department,” the chief told Mayor Cockrell and council in opening his presentation.

Magalis noted the recent retirement of Major Kevin Nicewarner at the outset of the new year, whom Chief Magalis noted was “Florida” and “Gulf Coast bound” after nearly 30 years with the department, in explaining the personnel juggling involving incumbent officers Captain Brian Whited, Sergeant Tony Clingerman, Corporal Michael Gallagher, and Major Jason Ryman.

Chief Magalis then introduced recent departmental additions (from right to left in photo and Town video) Jacob Dodson, and Richard Williamson, both on patrol duty since September, and Jack Weaver, a Front Royal native who transferred to FRPD from the Winchester Police Department.


Chief Magalis, at the podium, introduced, from left, Captain Brian Whited, Sergeant Tony Clingerman, Corporal Michael Gallagher, and recently added FRPD Officers Jack Weaver, Richard Williamson, and Jacob Dodson. Now-Major Jason Ryman was not present. Below, council and the mayor pose for a photo with the acknowledged FRPD officers.

The chief then segued back to his departmental veterans (again right to left in photo and video) Corporal Michael Gallagher (promoted from Master Police Officer), Sergeant Tony Clingerman (promoted from Corporal), and Captain Brian Whited (from Sergeant), and the absent Major Jason Ryman (from Operations Captain). Chief Magalis noted that now-Captain Whited would take over Logistics Captain duties as Captain Crystal Cline, who had previously handled those duties, moved to Operations.

“So, quite a bit of movement, we’ve got some new faces, and I’m happy to report at this time,” the chief said with a nod to Town Manager Joe Waltz, the Human Resources Department, and council, “We’re actually fully staffed” whispering the last two words, observing that, “Right now, and I’m proud to say it because there isn’t a whole lot of law enforcement agencies that are operating with a full enforcement staff. And right now,” the chief added knocking on the wooden podium, “we are.”

He noted a vacancy in communications but concluded, “We’re very happy where we’ve been able to bring recruitment and retention to. And that’s something we’re going to talk to you guys about as we keep trying to move that forward … so we can continue to attract qualified people like these gentlemen here and retain all that institutional knowledge instead of letting them walk out the door because we’ve been able to staff this from in house and that’s awesome … I’d just like you to congratulate all these guys for coming on board and doing such a great job,” Chief Magalis concluded, leading to a standing ovation from portions of the crowd and council dais.

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Council upholds BAR denial of demolition permit for portions of old ‘Murphy Theater building’ in Front Royal’s Historic Downtown Business District

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After hearing from SEESUU LLC applicant Gary Wayland (1:18:48 linked video mark) and his real estate agent Bill Barnett (1:29:22 mark), as well as three other public hearing speakers reiterating points made by 14 speakers at the December 13th Board of Architectural Review (BAR) public hearing opposing the SEESUU application for a partial demolition permit for the historic “Murphy Theater” building at 131 East Main Street, the Front Royal Town Council unanimously upheld the BAR denial of that application.

Board of Architectural Review denies partial demolition application for Murphy Theater building

Councilwoman Amber Morris offered the motion on the appeal (1:41:03 mark). Citing the record of the BAR public hearing and “additional evidence” her motion was to “… affirm the decision of the Board of Architectural Review, the BAR, denying the issuance of Certificate of Appropriateness on the application submitted by SEESUU LLC to demolish and remove a portion of a contributing structure on a property located at 131 East Main Street …” Morris’s motion was seconded by Vice-Mayor Wayne Sealock, leading to the unanimous vote upholding the BAR denial.

Citing a family history of involvement in town historical preservation, Amber Morris made the motion to uphold the BAR denial of the partial demolition permit for 131 E. Main St., also known as the old Murphy Theater building. Below, attorney David Silek cited a past family history of ownership of the building in arguing against demolition of any portion of the historic structure.

Addressing council on reasons to uphold the BAR denial were David Silek (1:21:00), a family member of past owners of the property; Ellen Aders (1:26:50), a neighboring resident, business and property owner; and James Smithlin (1:35:10), who offered observations on the historic nature of the terra cotta portion of the old theater building “made before talking movies” he noted, targeted for demolition. Those speakers, as several council members later would, pointed to the applicant’s lack of structural engineer’s report citing the condition and viability of renovation as opposed to demolition of the old theater and rear residential portions of the building.


“When you buy property in a Historic District it comes with a great responsibility. You’re buying into what is and what will be the story of out town,” Aders began, adding of other Historic District property owners, “To allow demolition of the Murphy Theater would be a punch in the gut to folks like the Poes, who are bringing life back to the old Warren Paint & Supply building; the Barnharts, who searched tirelessly for just the right stone for the Weaver building’s facade, and the Capital Gate,” Aders said of the group she pointed out is bringing the Afton Inn back to usability, among other Historic District property owners, “who take great pride in maintaining their little piece of Front Royal’s history.”

Adjacent and nearby property owner Ellen Aders urged council not to deliver a ‘punch to the gut’ of Front Royal Historic District property owners who are committed to preservation along lines of Historic District structural ambiance and restoration.

Aders then referenced the BAR public hearing at which she also spoke, pointing to a reluctance by the applicant to provide sought-after information. “If you watched the BAR public hearing you saw a total unwillingness on the part of the owner of the Murphy Theater. He denied the BAR access to the interior; he denied the request for a structural engineer’s survey; he refused to provide a cost analysis of restoration versus demolition and new construction.”

Aders also pointed to occupied apartments and daily meetings held “like clockwork” in the targeted portions of the building. Just because the owner is unwilling to restore the building, doesn’t mean that it’s ready to be torn down,” Aders concluded in urging council to reject the denial appeal.

Following SEESUU real estate representative Barnett to the podium, Smithlin opened by noting online research indicating terra cotta as “the oldest building material known to man”. Noting a personal 31-year history of meetings in the building, Smithlin said, “I’ve never seen a piece of tile or a whole tile fall.” While citing great respect for both the applicant and his real estate agent, he noted, “That building is over a hundred years old and is part of Front Royal’s Historic District. It would be tragic to tear it down, rather than restore it. As he closed he noted the Murphy Theater dated to “before they had talking movies” in urging council not to overturn the BAR demolition denial.

“I’m here to do something good for the town, that’s my intent and that’s really all I have to say,” Wayland told council in opening the public hearing when called to the podium by the mayor. He noted that the email he had sent to the town manager for distribution to council prior to the meeting was his intended “for the record” statement for the appeal hearing.

SEESUU LLC principal Gary Wayland asserted his plan to demolish and rebuild rear sections at 131 E. Main St. was a ‘good thing’ for the town and its Historic Downtown area. Below, SEESUU real estate agent Bill Barnett told council that restoration of the terra cotta portion of the building, particularly the towering 70-foot tall theater stage section, is impractical because it is ‘functionally obsolete’. He did not address the functionality of the rear, apartment section, also targeted for demolition.

After introducing himself as a real estate agent with a track record of restoration projects in downtown Front Royal, including “seven on Chester Street when it was one of the most run-down streets in the town” Barnett attempted to tie the SEESUU plans for the Murphy Theater building, including 40 or more “dwelling units” too small to be termed apartments by town code, to that track record. Pointing to the 40 x 40, 75-foot tall tower section of the terra cotta, theater/stage portion of the building, Barnett said that it, “Is totally functionally obsolete. There is no commercial or residential use that you can apply to this property today. The challenge of it is to find a way to put this property back into use, so it’s producing taxes and jobs and places for people to work and to live.”

Two views of the old Murphy Theater building and applicant’s rendering of rebuild. The oldest sections are the commercial addition facing East Main, added in 1908/09, and the original Methodist Church section dating to 1879, which is the darker bricked section behind the E. Main commercial addition that goes two windows back along Church St. The lighter terra cotta (believed dating to 1920s) and rear apartment section (circa 1940s or ’50s) are the targeted for demolition portions of the building.

But if the applicant and his agent were selling the SEESUU partial demolition and rebuild project as a positive for the historic downtown community, neither the public nor council was buying.

On the council side, the reviews of the demolition proposal and subsequent rebuild weren’t too positive. Addressing the applicant, Councilman Skip Rogers (1:48:16 mark) pointed to the period architectures involved in, not only the targeted building, but the Historic District in general. “We love the architecture, we love the feel, we love the comments of the folks that come into our community and appreciate how beautiful it is, what a feel you get when you go into the downtown area. So, my one concern, sir, is the impact that demolition would have,” Rogers paused, then referenced what he had seen in renderings of the reconstruction proposal.

“When I looked at that rendering I honestly thought of a contemporary prison, a very stark, almost aluminum-appearing structure, bright and shiny and static. And that in itself was enough for me to say this is not the way I believe our community needs to grow.”

Councilman Skip Rogers described renderings of the applicant’s plans for a rebuild as ‘very stark’ reminding him of ‘a contemporary prison’ and ‘not the way I believe our community needs to grow’. Below, the BAR and town planning staff at terra cotta section on site visit several days before their Dec. 13 public hearing and vote of denial of the SEESUU partial demolition permit application. The BAR was not granted inside access. But it looks like a little exterior maintenance along cracked section of the approximately 100-year-old terra cotta bricks might be in order. Final photos are the applicant’s renderings of the rebuild from front and rear.

Having made the motion to uphold the BAR denial, Councilwoman Morris cited her family history in the community and its ties to the historic memory of the community (1:45:46 mark), stating, “I really care about the preservation of the Historic District and I do have a vision for Front Royal. And unfortunately, and I mentioned this in the work session,” she said of comments on ownership in the Historic District, continuing, “and other people have touched on this – when you purchase a building of this magnitude with these plans in place, you know these costs and these things are going to arise. It’s a property owner’s responsibilities. And with that being said, with the current rendering we’d be foolish as a council  … to approve this without a vision of what we intend to see moving forward.”

Morris also addressed the by-right aspect of denial after an unsuccessful year of attempting to sell a building denied demolition in the Historic District raised at earlier work session discussion. She reasoned that offered at a reasonably assessed value to parties interested in Historic ownership and restoration as the applicable town code indicates should be done, it would likely find a buyer.

And if Rogers had compared the rebuild renderings to a prison, Morris was perhaps gentler in her assessment – “The current rendering looks like something, I know some people have mentioned Georgetown, for me it looks like something I’d find in Miami. And it’s not the vision I have for Front Royal or our Historic Downtown that we all know and love.”

See these and other comments in the Town video.

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Upcoming Events

Feb
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Feb 7 @ 8:00 am – 5:00 pm
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