FRONT ROYAL – One would imagine that like every municipality in the Commonwealth of Virginia, the Town of Front Royal Town finds itself in conflict with two Republican State legislators over bills introduced that would remove virtually all municipal control on the location and installation of future wireless communications structures, including replacement technologies.
Following unanimous approval of the addition of the matter to the Monday night, January 22 meeting agenda, council unanimously approved a Resolution opposing both House Bill 1258 and Senate Bill 405 now before the Virginia General Assembly. That resolution of opposition will be sent to state delegates (Republicans Collins, 29th, Webert, 18th, Gilbert, 15th) and senator (Republican Mark Obenshain, 26th) representing the Town of Front Royal; as well as to Virginia Governor Ralph Northam; the Virginia Municipal League; and the bills two sponsors, Delegate Terry G. Kilgore, Republican-1st District, and Senator Ryan T. McDougle, R-4th District.
Mayor Hollis Tharpe thanked the Town’s legal and administrative staffs for quickly bringing the legislation to his attention so that opposition could be voted on and passed on to the appropriate legislative representatives prior to votes on passage of the bills.
Noting that the staff summary of impacts of the legislation had just been passed to council prior to the Monday night meeting, Councilman Jacob Meza asked Town Attorney Doug Napier and Town Manager Joe Waltz to summarize and elaborate on impacts of the legislation on municipalities across the commonwealth. With legislation on the table that would not only strip municipalities of controls on the wireless industry, but set precedents that would lead all other industries to expect similar treatment, the only issue was where to start.
What precedents would be set?
1. For starters according to the town attorney, the assumption of approval is written into the legislation, with a brief and highly technical review period being included that most municipalities would not have the in-house expertise to address without outside contractor help. “The locality must provide guidance on incomplete application within 10 days or application is ‘Deemed Approved’ which takes a legislative decision away from local elected officials.”
2. Then a fee ($500) attached to the application and review process would not cover costs the municipality would incur.
3. The proposed legislation strips local government’s right to approve applications based on local zoning accomplished in the best interest of a community based on feedback from that community’s citizens.
4. And as stated above, legal staff believes treatment of the wireless industry in such a manner would open the floodgate of deregulation of all industries with equipment located within that municipality’s boundaries.
As stated in the staff summary, localities may NOT condition approval on removal of an existing structure; may NOT require co-location of other equipment on the new wireless structure; and may NOT limit the duration of the approval.
The town staff summary observes: “This proposed legislation is not a good idea, among other reasons, because:
- “Local land use authority ought to rest with locally elected officials who best know their communities and their citizens’ needs.
- “Local zoning takes into consideration that the economic, social, cultural, and other conditions are not one-size fits-all.
- “Local zoning recognizes the importance of citizen input. The bills’ provisions remove the ability of our citizens to have meaningful input into decisions affecting the character of their communities.
- “The proposed bills create a paradigm shift in authority, moving the decision-making process away from the community and its elected officials to FOR-PROFIT companies who care about their bottom line, not about our citizens’ welfare.
- “Specifically, the “Deemed Approved” language strikes down local legislative process. These bills take away the ability of a locality to ask questions of the applicant or negotiate with the industry about a specific location or type of equipment or screening.
- “This is not the process for a typical zoning application and there is no compelling justification for this industry to be treated in a special manner.”
- As for a maximum $500 fee placed on the applicant versus costs incurred by the municipality in reviewing the application, the staff summary states that:
- “The fees will never be in tune with actual costs. A State statute-determined fee does not account for the differences in actual local workloads as well as the costs and availability of professional services costs that occur in different local jurisdictions occasioned by differing applications throughout the Commonwealth.
- “Actual Direct Costs are not typically calculated by localities; this unfunded mandate would place an additional burden on local taxpayers who will end up subsidizing the applicants.
- “The alternative is that the applications will be automatically approved because localities won’t have the resources to review the various projects within the arbitrary deadlines.”
- Where a municipality to reject an application, it must then:
• Provide a written statement explaining the rejection of the application;
• Explain any modifications in writing (this may be used by the applicant as evidence that the locality’s disapproval was arbitrary and capricious);
• Must explain the disapproval by a substantial record of evidence contained in a written record publicly released
These are the criteria the town attorney noted Front Royal, like most Virginia municipalities would not have the in-house expertise to prepare.
As for precedent setting, the staff summary notes that, “These bills would treat the wireless industry differently from all other private profit-making industries, thus leaving localities (and the state) open to charges of discrimination against other industries. The likelihood is high that other industries will expect the same or similar treatment.
Much like what has occurred at the federal level over the past year as governmental regulatory authority has systematically been stripped from a variety of departments this proposed state legislation gives private-sector, for-profit companies the upper hand over Virginia municipalities from the start. The legislation even goes so far as to create new language to accomplish that.
“The locality may not require a special exception, special use permit or variance for ‘Administrative Review-Eligible Projects’ (which is a new term),” town staff notes in parenthesis of the phrase attached to future wireless industry project applications.
Well now our state representatives will know what our town officials think of this legislation, I bet they are wondering what their constituents think as well …
The sponsors of the legislation in the state house and senate are:
Del. Terry G. Kilgore, R-1st District, DelTKilgore@house.virginia.gov Richmond office (804) 698-1001; district office (276) 386-7011
Sen. Ryan T. McDougle, R-4th District, email@example.com Richmond office (804) 698-7504, district office (804) 730-1026
Front Royal’s State Senator is Mark Obenshain, R-26th District, firstname.lastname@example.org Richmond office (804) 698-7526, district office (540) 437-1451
Front Royal’s three House delegates are:
C. Todd Gilbert, R-15th District, DelTGilbert@house.virginia.gov Richmond office (804) 698-1015, district office (540) 459-7550
Christopher E. Collins, R-29th District, DelCCollins@house.virginia.gov Richmond office (804) 698-1029, district office (540) 539-1724
Michael Webert, R-18th District, DelMWebert@house.virginia.gov Richmond office (804) 698-1018, district office (540) 999-8218
Town Planning Commission Meeting May 15, 2019: Dog kennel, daycare & new subdivision
At the May 15th Town of Front Royal Planning Commission meeting, one public hearing on a special use permit, submitted by Fianna Litvok, for a dog training facility, with a kennel, at 650 W. 11th Street, Ste A in Front Royal. The Commission also reviewed a preliminary plan application, submitted by Ramsey, Inc. for a 33 lot subdivision within the R-1 district.
The proposed dog training facility/dog kennel would be called Tip Top K9. It would offer obedience training for dogs. The applicant Fianna Litvok states that most training would be done off-site at the pet owner’s house or other location. However, there would be “doggie bootcamps” on-site. Commercial kennels are described as secondary and relate only to the “doggie bootcamps”, where pet owners would leave their dogs at the facility for 2-4 weeks. Litvok says initially hopes to be able to have 1-4 dogs housed at the site, but with a potential for up to 10 dogs. Click here to download complete application and photos.
Chris Ramsey of Ramsey, Inc submitted a preliminary plan for a 33 lot subdivision at the end of Ewall Street and and the end of Happy Ridge Drive to be called Happy Creek Knolls.
The daycare application was extended to the next Planning Commission meeting in June.
Jeremy Camp, Town Planning and Zoning Director gave his report to the Commission.
The Royal Examiner‘s camera was there:
Town of Front Royal Receives Certificate of Achievement for Excellence in Financial Reporting
The Certificate of Achievement for Excellence in Financial Reporting has been awarded to the Town of Front Royal by the Government Finance Officers Association of the United States and Canada (GFOA) for its Comprehensive Annual Financial Report (CAFR) for the fiscal year ended June 30, 2018. The Certificate of Achievement is the highest form of recognition in the area of governmental accounting and financial reporting, and its attainment represents a significant accomplishment by a government and its management. The Town has received this award consecutively for 32 years.
An award of Financial Reporting Achievement has been awarded to the designated by the Town of Front Royal as primarily responsible for preparing the award-winning CAFR.
The CAFR has been judged by an impartial panel to meet the high standards of the program, which includes demonstrating a constructive “spirit of full disclosure” to clearly communicate its financial story and motivate potential users and user groups to read the CAFR.
Tran defense motions echo earlier filings, cite vague summary of allegations
On May 2, the attorney for ITFederal and its CEO Truc “Curt” Tran followed attorneys for the other seven defendants in the EDA civil suit of March 26 in filing defense motions attacking the style and substance of the case against their clients.
In the demurrer seeking dismissal of five of the six counts (1-4 and 6) in the EDA Civil Complaint it is asserted that the filing by attorney Cullen Seltzer of the Richmond law firm of Sand-Anderson lacks the legally-required specificity and factual basis to support its oft-stated conclusion that the defendants have acted to improperly divert EDA assets based “on information and belief”.
“And many of the Plaintiff’s allegations being made solely ‘on information and belief’ is fatal under the heightened pleading requirement for fraud,” Tran/ITFederal attorney Brandon H. Elledge writes citing case history, adding of such wording, “and thus to avoid dismissal, a fraud plaintiff must supplement such allegations with ‘a statement of facts on which the belief is founded’ and also ‘must delineate at least the nature and scope of plaintiff’s efforts to obtain, before filing the complaint, the information needed to plead with particularity’.”
As to the sixth count omitted from the Tran/ITFederal request for dismissal, Count 5 – “Breach of Fiduciary Duty of Loyalty” – the demurrer notes that it “does not purport to state a claim against Mr. Tran and ITFederal” but rather asserts actual claims “only against Defendant McDonald” – which does appear to be the case as it would impact all defendants other than McDonald. See Related Story:
“As an employee of the Warren EDA, Defendant McDonald owed the Warren EDA a fiduciary loyalty,” Count 5 begins in recounting the obligations of McDonald’s role as the executive director of the EDA.
And it is in the absence of the detail of the preceding 160 paragraphs leading to the $17.6 million-plus civil suit’s call for compensation in six counts against all nine defendants upon which defense attorneys have focused their arguments for dismissal.
The six counts seeking a judgment of “not less than $17,640,446.16” against “the Defendants jointly and severally” are: 1/ Fraud and Fraud in the Inducement; 2/ Conversion; 3/ Conspiracy; 4/ Unjust Enrichment; 5/ Breach of Fiduciary Duty of Loyalty; and 6/ Ultra Vires (improper) Transactions and Agreements.
And other than that one mention of the minimum of $17.6-million-and-change of allegedly misdirected or embezzled EDA assets there is no other reference to specific amounts of money tied to any defendant in the plaintiff presentation of the resultant civil “Counts” against those defendants. In fact, only “Defendant McDonald” and “Defendant Earthright Energy LLC” are cited in the six counts – McDonald in the aforementioned Count 5 “Breach of Fiduciary Loyalty” that does appear focused on her alone; and Earthright Energy LLC in Count 6 “Ultra Vires Transactions and Agreements” related to work arrangements or contracts engaged in with Earthright Energy through McDonald without approval of the EDA Board of Directors “in the manner required by law.”
However as alluded to above and noted in previous stories on the EDA complaint and defense motions against it, there is detail concerning specific amounts of money involved in specific transactions involving specific defendants throughout the first 160 paragraphs of the complaint. Those 160 graphs appear to present the basis of fact and finance leading to the final 39 paragraphs stating of the more generalized summary of offenses described in Counts 1 through 6 of the EDA civil suit. See Related Story:
However for Tran/ITFederal attorney Elledge that detail too, is lacking.
“While the Complaint is long on allegations as to McDonald’s misconduct, it offers very little as to Defendants … Tran … and ITFederal except for conclusory recitations or vague statements made only ‘on information and belief’,” Elledge asserts, adding, “Mr. Tran and ITFederal expressly deny the meritless claims asserted against them and any alleged wrongdoing in this matter.”
Of the summary nature of the stating of the Counts against the defendants, the Tran/ITFederal defense memorandum of support of the demurrer for dismissal states, “… the group pleading method employed by the Warren EDA in its Complaint is improper and fails to fairly inform Mr. Tran and ITFederal of the nature of the claims levied against them …”
However, is that true of the first 160 paragraphs of the 199-graph complaint – well 209-graphs if you include the 10 paragraph “Prayer for Relief” seeking return of EDA assets, attorneys fees and “punitive damages (of at least one million dollars) jointly and severally against the Defendants”?
The complaint devotes many paragraphs to the securing of a $10-million bank loan for Tran/ITFederal through the EDA, citing the involvement of McDonald and then-U.S. Congressman Robert Goodlatte, R-6th, along with Tran. It is noted that loan was made at Goodlatte’s request despite repeated assertions by “Tran and Defendant McDonald …that Tran did not need the financial support of the Town and Warren EDA”.
However that “unnecessary” $10 million dollars of financial support was acquired, along with the gift of a 30-acre parcel at the Royal Phoenix site publicly valued by the EDA at $2 million for a one dollar price. Conditions were attached to that gift, including completion of the project by an eventually extended completion date of mid-2020; and a reduction of the scope of the project from an approximate 40,000 s.f. in a three-building complex alleged by Goodlatte to produce over 600 high-paying tech jobs through ITFederal to the community, to a 10,000 square-foot building producing at least 10 jobs of indeterminate wage.
And while the complaint notes that far less than $10 million appears to have been spent to date on the ITFederal Project here, the Tran/ITFederal motion for dismissal asserts Tran did nothing wrong and has worked within the parameters of his agreement with the EDA, both on the loan and a Memorandum of Understanding (MOU) regarding nearly $1.5 million in what is described as “Subsequent Payments to ITFederal” alleged to have been unauthorized by the EDA.
Regarding the Count of “Conversion” of EDA assets to Tran’s personal benefit, Elledge writes on behalf of his clients, “The only Warren EDA funds allegedly retained by ITFederal are a $10 million loan pursuant to a promissory note and a deed of trust and some $1.5 million pursuant to a Memorandum of Understanding. Thus, ITFederal received those funds in accordance with such agreements. Plaintiff does not – and cannot – allege a breach of such agreements, and it, therefore, alleges no right to immediate possession of the funds. Rather, it lawfully controls them subject to the terms of the loan documents and the MOU …
“The only payments due to Plaintiff is the repayment terms of the promissory note, and it has not – and cannot – allege that ITFederal has breached or defaulted on any of its contractual obligations,” the Tran/ITFederal filing in support of its motion for dismissal states.
But at issue for the EDA as plaintiff is an alleged fraud perpetrated by Tran in conjunction with McDonald in her role as EDA executive director and possibly others, to acquire the loan, gift of property and “Subsequent Payments to ITFederal”. That fraud is alleged to involve a $140 million in purported ITFederal government contract the plaintiff found no evidence exists – though Elledge asserts it does – as well as websites said to create a false impression of financial viability of Tran companies the plaintiff asserts there is no discovered substantive support of, and false representations of Tran’s personal worth and intentions of investment in this community.
“Plaintiff does not allege any cohesive fraudulent scheme here, but rather a series of independent transactions connected only by the involvement of Defendant McDonald … In the portions of the Complaint referencing Mr. Tran and ITFederal, Plaintiff obscures who actually made what representations at issue by repeating the phrase ‘Tran and Defendant McDonald represented, through McDonald (emphasis in context) … Such vague construction fails to establish Mr. Tran’s connection to the alleged misrepresentations by omitting how Mr. Tran managed to represent anything ‘through McDonald’,” the Tran/ITF filing states, adding, “By lumping Mr. Tran together with Defendant McDonald and referencing ‘multiple occasions,’ Plaintiff unsuccessfully tries to create an impression of wrongdoing without articulating who made what statement to whom on which occasion.”
From a different angle, Tran/ITFederal attorney Elledge echoes Jennifer McDonald attorney Lee Berlik’s argument that his client is being villainized for the alleged actions of other defendants and/or bad decisions by past EDA boards.
“Plaintiff suggests every statement by every counterparty it now regrets crediting was a false statement by Ms. McDonald … instead of a false statement to Ms. McDonald (emphasis in context),” Berlik wrote in his April 16 filing on his client’s behalf, adding, “The Warren EDA is looking for someone to blame for every decision it now regrets since new leadership has taken over – and Ms. McDonald is it.”
From Tran’s legal perspective he has simply taken advantage of a series of sweetheart deals offered by the EDA Board of Directors at the urging of friends in high places, including Congressman Goodlatte and the EDA’s then executive director.
What could possibly be wrong with that?
At issue in the wake of the filing of the series of defense demurrers for dismissal of the cases against their clients is will that question in regard to all defendants ever be argued in front of a jury in a Warren County or any other courtroom?
Budget funding, UPS lot permitting, tax deadline and street closure concerns
The Front Royal Town Council meeting of Monday, May 13, saw:
- first-reading approval of appropriations to support its $47,538,060 Fiscal Year 2019/2020 budget;
- approval of UPS’s request for a special use permit to expand its commercial parking area at its 470 South Commerce shipping facility contingent upon nine conditions recommended by the planning commission to protect the habitability of a nearby residential neighborhood;
- extension of the deadline for payment of Town real estate and personal property taxes from June 5 to June 21 this year;
- and the reading of several proclamations into the record.
See these actions and Downtown Bakery proprietor Keith Menefee’s “Public Comments concern about the event-long extent of East Main Street’s road closure during the Family Fun Day event of the previous Saturday on the Royal Examiner video:
Council addresses legal options in replacing Mayor Tharpe
After a closed session at the end of Monday’s meeting, Vice-Mayor Bill Sealock explained that council will meet its legal obligation to appoint a new mayor within 45 days of the resignation of Hollis Tharpe on May 2. The announcement of the intended appointment will be made by May 28, Sealock indicated.
The vice mayor, who has been serving as acting mayor since Tharpe’s resignation following a solicitation of prostitution indictment, indicated he does not want the appointment – “I don’t want to lose my vote,” he said of the mayor’s role of only breaking council vote ties.
Council could appoint one of its own or any town citizen legally qualified to serve as mayor to fill the position.
Council has authorized Town Attorney Doug Napier to petition the court not to have to call a required special election to fill the mayor’s term out before the county’s upcoming municipal elections this November. State code allows such requests to be made when the next municipal election is less than a year away.
See Vice Mayor Sealock address council’s plan moving forward in this Royal Examiner video:
Town Council to consider how to fill the seat of former Mayor Hollis Tharpe
The Front Royal Town Council at it’s May 13th meeting has scheduled a Closed Meeting for filling the seat of former Mayor Hollis Tharpe.
There appears to be three scenarios:
a) the possible appointment of a specific public appointee of Town Council, namely, a citizen of Front Royal or a sitting Town Council Member, to fill the seat vacated by the resignation of former Mayor Hollis L. Tharpe, pursuant to Section 2.2 3711. A. 1. of the Code of Virginia;
b) the possible appointment of a specific public appointee of Town Council, namely, a citizen of Front Royal, to fill a seat vacated by the possible appointment of a Town Council Member, should a sitting Member of Town Council be appointed to fill the seat of Interim Mayor, due to the resignation of former Mayor Hollis L. Tharpe, pursuant to Section 2.2 3711. A. 1. of the Code of Virginia; and,
c) for the purpose of consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel, specifically, the law regarding filling vacancies on positions of the governing body of the Town, pursuant to Section 2.2-3711. A. 8. of the Code of Virginia.
After the closed meeting, hopefully the Council will have a decision on how this seat will be filled.
See related story: