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Town COVID-19 ordinance proposals – what do they really mean?

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Following a nearly hour-and-forty-minute closed session on a variety of topics including the “disposition” status of the Afton Inn; the legal challenge of Jacob Meza’s January 4 appointment to council; and board and commission appointments, the Front Royal Town Council covered a variety of matters at its Town Hall work session of Tuesday, February 16. And while council adjourned to closed session at 6:34 p.m. with a four-person quorum, Meza and Letasha Thompson absent, when it reconvened to open work session at 8:12 p.m. both Meza and Thompson were present.

While it was a multi-faceted agenda (that will be covered in a related story), three items at that agenda’s conclusion related to COVID-19 Coronavirus pandemic public health guidelines seemed of perhaps the most immediate interest and import to all town citizens.

As seen on the Town’s live video broadcast Scott Lloyd, hands extended center left, explains initiatives as council gets down to work session business on Feb. 16. Royal Examiner Photos by Roger Bianchini

Two of those items were ordinance proposals forwarded by first-term Councilman Scott Lloyd, who made waves in his first month in office with a proposal to rename a town street after his former boss at the federal level, Donald J. Trump. This time Lloyd took aim at pandemic public health safety precautions originating at the State level, starting with a gubernatorial Executive Order loophole on a medical exemption to public mask-wearing.

The second Lloyd ordinance proposal would prohibit any business or organizational “entity” operating within the town limits “from requiring its employees, volunteers, members, etc. to receive any of the COVID vaccines as a condition of employment, membership, etc.” once those vaccines are available to them.

The third pandemic item co-sponsored by Lloyd, Meza, and Joseph McFadden took aim at allowing more people into council meetings or work sessions, though under exactly what, if any, social distancing parameters was not initially clear from the agenda summary or subsequent discussion.

Thompson raised questions about where the no vaccination mandate might lead. She noted that currently, Valley Health requires some employees exposed to vulnerable segments of the public to get flu shots and wondered if starting with COVID vaccines, council might move to expand a vaccination prohibition for other diseases or illnesses as well.

As to the increased public participation at council meetings or work sessions, the Town has implemented fairly harsh public meeting social-distancing guidelines that include no admission of non-council or town staff members to Town Hall meeting room work sessions or meetings.

File photo of a largely empty WCGC meeting room at council’s first meeting of 2021 on Jan. 4.

Thompson noted that were council to suggest removal of the installed social-distancing parameters in the Warren County Government Center meeting room to allow full capacities” or something less restrictive than the County has in place, it would need authorization from the county supervisors who have installed the distancing parameters there.

But it was the first of those COVID-related agenda items that really caught our attention.

Presume what?

In introducing his mask ordinance proposal to his colleagues Tuesday, Lloyd said, “Really I think the purpose of this … would be to clarify what the existing legal structure is from the Executive Order (EO) … especially when you consider the health exceptions that I mentioned in the written material.”

The specifically referenced part of Governor Ralph Northam’s Executive Order 72 exempts people who have “health conditions or disabilities” that would create a physical hazard and significant breathing difficulty from having one’s nose and mouth covered per otherwise EO-mandated Coronavirus pandemic masking health precautions.

Lloyd’s “mention” and “clarification” of health exemptions to mask-wearing originates in the Governor’s Executive Order 72’s perhaps over-broad interpretation of HIPAA (Health Insurance Portability & Accountability Act) guidelines passed in the late 1990s.

HIPAA was initially designed to “establish a national set of security standards for protecting certain health information that is held or transferred in electronic form” according to the federal Health and Human Services (HHS) department website. Over the ensuing decades in more than one reporter’s opinion, it has been expanded to withhold information on individual medical conditions or status that used to be routinely released related to public incidents or actions across a broad spectrum previously considered in the public interest. A step in the right or wrong direction? – Depends on one’s perspective and the nature of the information being sought.

In this case, it has led Virginia’s governor to, not only include language in Executive Order 72 that a person claiming a medical exemption to mask-wearing “shall not be required to produce or carry medical documentation verifying stated condition”, but also “not be required to identify the precise underlying medical condition.”

A familiar sight on the Royal Examiner website and elsewhere, as Virginia Gov. Northam conducts another press conference on the status of the statewide COVID-19 pandemic response. Are his Executive Orders infringements on personal liberties or an expression of a majority will toward public health safety precautions, THAT is the question.

“If we were able to clarify through an action like this that okay, this is where the government stands and this is how our attitude is going to be in our town properties,” Lloyd elaborated of the impetus for his proposal.

The proposed Town legislative “attitude” according to the agenda staff summary of Lloyd’s mask ordinance proposal is that: “The proposed ordinance would create a town-wide presumption in the interpretation of the Order that those who are not wearing masks are declining for health reasons …” adding that “nobody shall be required to disclose or identify the medical condition in question.”

Now call me a cynic – but it appears that Lloyd would have council pass an ordinance taking the governor’s language a step further, in creating a Town Code presuming no one in Front Royal not wearing a mask would lie to cover the fact they just don’t want to and/or don’t believe it necessary to wear face coverings as mandated at the State level. Those public health mandates are a result of the ongoing COVID-19 Coronavirus pandemic that as of February 18, are reported by the U.S. Center for Disease Control (CDC) to have claimed 495,180 lives nationally, of those 7,075 in Virginia and 40 in Warren County over the course of about one year. Globally over 2.43 million deaths are attributed to the pandemic.

Above, CDC COVID-19 stats of Feb. 18, for the county, state, and nation; below a CDC graphic illustration of confirmed COVID cases in the U.S. and neighboring countries – ‘What, Me Worry?’

So, following the meeting, this reporter contacted Lloyd by email about that concern that a “presumed” medical condition legislative ordinance could be utilized as a different kind of “cover” – cover for a lie that someone who just doesn’t want to wear a mask as a public safety measure, actually has a medical condition to justify the absence of a mask.

His initial response was, “I don’t see it as one party lying. The party is not representing anything about why they are not wearing a mask–the other party is presuming that it is because of health reasons.” – The “other party” apparently being any impacted business, organization, or local public health/safety official operating within the town limits.

In fact, during work session discussion Councilwoman Thompson asked Lloyd if his proposal would limit town business owners from requiring face masks of customers or employees, as some do. She said she wanted to be assured that their right to institute precautions was not limited, so as to protect them and perhaps vulnerable employees, customers, or elderly family members in their homes.

Here McFadden entered the conversation, turning Thompson’s inquiry around. “How do we deal with businesses that infringe upon people’s ADA rights? You know, if they have American Disabilities Act rights to not do something … How do we prevent that, then?” he said, pointing to actual respiratory discomfort from an actual health condition or disability a potential customer might suffer from.

Thompson responded, pointing to alternative service options including call-in orders, curbside pickups, or deliveries that some businesses with mask requirements offer customers who can’t wear masks. While part of Virginia Governor Northam’s Executive Order 72 references a perhaps overbroad interpretation of HIPAA, it continues to elaborate on compromise solutions under the presumption that people claiming medical exemptions actually have a justifying health condition.

“Adaptations and alternatives for individuals with health conditions or disabilities should be considered whenever possible to increase the feasibility of wearing a mask or to reduce the risk of COVID-19 spreading if it is not possible to wear one,” EO-72 states.

File photo of Councilman Lloyd at his first, post-election council meeting on Jan. 4, at the WCGC

Asked later about Thompson’s concerns on the flip side of his proposal as it might affect businesses wanting to mandate mask-wearing, Lloyd said, “They would be free to do so, as indicated many times in the discussion.” Also in introducing his mask-exemption ordinance Lloyd noted that he was “mindful of our time and the things that we should stick our nose in and keep out of.”

We also later asked Councilman McFadden by email about his perception of the evening’s discussion, particularly the mask ordinance. “My perspective on the mask ordinance is that people are not well informed. Too many people get their information from memes on Facebook or from the unchecked opinions of their peers. And depending on how well their brain responds to fear, people will believe whatever they want to and act however they feel will be in the interest of their survival often regardless of facts, statistics, or long proven and accepted science – some of which now seems to be ‘COVID Logic’ as we discussed and identified in the meeting.”

During the discussion, McFadden said he perceived Lloyd’s clarification ordinance as relieving business owners tasked by State mandates to require masking along sometimes confusing or inconsistent parameters, from having to do so if it is not their choice to do so.

Joe McFadden, also seated at his first meeting as an elected councilman on Jan. 4. During Feb. 16 work session discussion McFadden pointed out that he is part of a new self-identified libertarian council majority, along with Lloyd, Jacob Meza, and Letasha Thompson, seeking to balance federal and state Constitutional rights with local governmental concerns.

Of the mask ordinance proposal, McFadden added, “We’d simply be ensuring that citizens know what the actual Executive Order 72 states regarding mask enforcement. And if it were an ordinance, it would require policing – which is not what Scott was aiming at.”

However, the proposed ordinance language referenced above seems to indicate a lack of policing as the end result of an ordinance “presumption” that someone not wearing a mask has an exempting health condition which they cannot even be questioned about. Of course, I guess there would have to be “policing” to see that the “no-ask, no-tell” mandate wasn’t being violated.

Asked for a council consensus by the mayor, it appeared the proposal was fizzling for now. McFadden suggested that if revisited, council look at approaching the matter at a Constitutional level.

During a subsequent discussion of Lloyd’s proposed mandate against employee or member sanctions for refusing to be COVID-19 vaccinated, McFadden referenced a new four-member council “libertarian” majority among whom such matters and Constitutional perspectives on solutions was a priority. Queried about that four-member majority, both McFadden and Lloyd identified it as including themselves, along with Meza and Thompson.

Of the vaccination ordinance proposal, one of those four, Meza, expressed concern that if approved, council would be “mandating” that impacted businesses or organizations “not mandate” a particular action – “That gives me some concern,” Meza told his colleagues.

Watch these COVID-related discussions in their entirety beginning at the 58:40 mark of the work session video, as well as the earlier discussions and a PowerPoint presentation on town utilities.

Watch the February 16, 2021, Town Council Work Session here.

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Supervisors authorize $4.34 million grant application for new County Fire & Rescue staffing

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The Warren County Board of Supervisors committed to a long-term fix for staffing shortages throughout the County’s Fire & Rescue Department by authorizing a SAFER (Staffing for Adequate Fire and Emergency Response) Grant application to add 18 full-time firefighter positions across the system’s paid and volunteer departments. The total value of the grant is estimated at $4,343,586 over a three-year period.

It would appear the county’s elected officials have committed to maintaining the staffing beyond the three-year grant period as new Fire Chief James Bonzano has outlined staffing numbers necessary to achieve acceptable levels of public safety for county citizens on both sides of the town/county line across several previous work sessions, culminating with the March 2 unanimous vote of approval of the grant application.

On Tuesday, March 2, the county supervisors unanimously agreed to launch the effort to add 18 full-time paid firefighters to the County system with federal grant assistance covering the first 3 years. Royal Examiner Photos by Roger Bianchini

Now comes the tough part – achieving the grant administered through FEMA (Federal Emergency Management Agency) being competed for nationally. Information provided to the supervisors noted that the federally overseen SAFER Grant Program is anticipated to distribute a total of approximately $355 million through an estimated 300 grants to be awarded. September 30 of this year is the date the grant awards are anticipated to be announced. But with a demonstrable public safety need, and apparent County commitment to maintaining the additional staff the grant would enable, hope is the application will be successful.

If the SAFER Grant is achieved, the annual cost to fund the 18 full-time county firefighter positions at current pay rates is $1,447,862. The SAFER Grant would cover 100% of that cost for three years, after which the County will be required to cover the additional personnel costs. An agenda packet summary prepared by County Fire & Rescue noted associated costs totaling $252,000 over the three-year grant period, $180,000 in year one and $36,000 in years two, three that the County will have to provide if the grant is realized. Those associated costs at $36,000 per year would continue beyond the grant period. With those associated costs related to equipment, required physicals, and other peripheral expenses, an annual County funding commitment of over $1.48 million on top of the department’s current budget will be necessary to maintain the new staff after the three-year grant period.

But with several supervisors having observed in the past that protecting public safety is a core governmental function, it appears they are collectively willing to bite the bullet to do what is necessary financially to adequately provide that crucial property and often life-preserving function. And Supervisor Delores Oates noted during board discussion with Chief Bonzano Tuesday that some new staffing costs when assumed by the County will be offset by eliminating current overtime pay required to meet existing staffing shortages.

New County Fire & Rescue Chief James Bonzano, left, flanked by Fire Marshal Gerry Maiatico, makes the case for a County commitment to permanent adequate across-the-board staffing for his department. And no, Bonzano and Maiatico are not moonlighting as reporters. They just took advantage of the media table with reporters continuing to attend virtually during pandemic social distancing requirements.

Specifically acknowledged in the proposal presented to the supervisors were paid position needs at Fortsmouth Company 8 and Shenandoah Shores Company 5, which are currently totally volunteer-dependent with no paid staff. A paid staff increase at pivotally located Front Royal Company 1, which often assists with responses out of its primary coverage area, was also specifically cited.

Ultimately, the motion to authorize the $4.34-million SAFER Grant application made by Walt Mabe, seconded by Archie Fox, passed by a 5-0 roll call vote.

In the County video see this discussion, as well as other business including an update on the potential of refinancing existing County bonds related to past capital improvements, as part of a joint VPSA Special Obligation Bond issue slated for April 20. Ted Cole of County bond consultant Davenport Inc. virtually explained the board has till March 31 to commit or delay refinancing until a future date when more favorable circumstances might exist, including a tax exemption on the bond re-issue. Current savings under existing market numbers forecast savings of over $1.48 million over an 18-year payoff. However, projected future savings as high as $3.39 million were forecast by waiting three or four years to refinance. But as Interim County Administrator Ed Daley observed those future projections can be more tenuous with yet-unknown variables factoring in. How will the board roll the dice on its refinancing options? Stay tuned as March 31 approaches.

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Town Council meets – briefly – to forward some routine(?) business

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It was an auspicious first Front Royal Town Council-chaired meeting for Vice-Mayor Lori Cockrell on Monday evening, March 1. Chairing the Special Meeting called largely to hold a required public hearing to allow a sale or transfer of properties on Hill Street thought to have been accomplished in 1992, to proceed 29 years later, and only one other perfunctory agenda item – making Town Manager Steven Hicks appointment as new Town EDA executive director at no additional cost to the Town, official – it seemed history could be in the making.

That history being the breaking of former Mayor Eugene Tewalt’s 14-minute mark for shortest council meeting in modern history. Several years ago Tewalt broke the previous 17-minute standard of another vice-mayor, Daniel Pond III, set when we were all a lot younger.

Meeting convened virtually with Vice-Mayor Cockrell in the far-end chairman’s seat in Mayor Holloway’s absence. Little did anyone know it would be 12-minutes-plus to history. Royal Examiner Photos by Roger Bianchini

And if Vice-Mayor Cockrell hadn’t suggested a third topic to the agenda that council unanimously consented to add, an unapproachable single-digit record of about four minutes was in the offing. For that added topic, scheduling of a one or two-day “visioning” retreat, apparently also known as an “advance” to some people as we enter the third decade of the 21st century, took up the first nine minutes of Monday’s meeting.

That left four minutes to make history.

About that agenda

As for the agenda items:

1/ The Hill Street land transfer passed unanimously without comment from the public that wasn’t present at the second-floor Town Hall meeting room to speak to. For as explained by Assistant Town Attorney George Sonnett who worked on the planned property exchange, at issue is cleaning up an unresolved property acquisition through Town condemnation to facilitate upgrading Hill Street dating the late 1970’s. Another effort to clean up the situation in 1992 was illustrated by a surveyor’s plat included in the agenda packet. Involved is an existing house now occupied by a couple the Town hopes to work with to solve the unresolved parcel swap initiated over 40 years ago. Since the involved property is not a “public use” parcel, the Town will not have to advertise the planned exchange for competitive bids.

2/ Town Manager Steven Hicks was appointed to also serve as the Town’s EDA’s executive director. – And why wouldn’t he be since he’s a sport and is doing it without any additional salary compensation?

File photo of Town Manager Hicks, center, now also FREDA executive director. Has he found the secret of the 48-hour day, or does he just have a little help from his friends – in Town Hall and across town at the County and EDA offices?

Though it appears the Town EDA’s, or FREDA as it’s already affectionately known, chief executive position may focus on tourism and empty in-town storefront marketing with some assistance from the existing County EDA (former Town-County EDA), as opposed to major industry recruitment which the “other” EDA may continue with on both sides of the town/county line.

3/ As for that “advance” event formerly known as a “retreat” to review and develop long-term strategic goals and “visioning” for a community, after a painful and “record-threatening” discussion of potential back-to-back day, 4-hour meetings in coming weeks or months, it was decided to initially schedule one “retreat” meeting for Thursday, March 25, running from 5:30 p.m. to 9:30 p.m. After that the necessity and plan for a second one, possibly including an envisioned joint meeting with the Warren County Board of Supervisors, will be discussed.

Beat the Clock?

The clock passed from 7:08 to 7:09 p.m. with no “advance” warning to the call for the Hill Street parcel exchange public hearing. With Assistant Acting Council Clerk Mary Ellen Lynn quickly negotiating a reading of the agenda summary of the public hearing topic, then the convening of and closing of the public hearing with no one present to speak just 1:17 was tolled off the clock. The roll call and unanimous vote took another 1:03 taking the clock to 7:11 p.m. and 10 seconds toward the established record 7:14 p.m. mark.

Just under two-and-a-half minutes and an EDA executive director’s appointment already announced is all that stood between Vice-Mayor Cockrell, council and history. Could she lead her team, together in the Town of Front Royal political trenches for just two months, to a landmark achievement – or at least a place in the local political reporters’ Hall of Fame?

December file photo of now Vice-Mayor Cockrell, perhaps practicing her coach-’em up ‘We can DO this, team!’ mode.

But did trouble lurk from within the ranks? From virtual world as the roll call vote confirming Hicks’ appointment came to Councilman McFadden, a “no” was heard. But coming as it did during the vote, not prior, it didn’t lead to further debate of the appointment, approved 5-1. Consequently, the Hicks EDA appointment ate only another 65 seconds off the clock, bringing Vice-Mayor Cockrell’s call to adjournment by this sportswriter’s account, at 7:12 p.m. and 32-seconds. Factoring in lag time on the convening of the meeting from the time the meeting video began rolling, a check of that video posted on Tuesday morning reflected a total meeting time of 12-minutes-and-25-seconds. So, no matter whose clock is official, the record was broken by over a minute.

The crowd, had there been one, would have gone wild – well, at least the press row portion of it.

About that ‘NO’ vote

Contacted later, Councilman McFadden explained his vote against Hicks’ appointment as a “a protest vote” or a “No” vote against the creation of FREDA, rather than a vote against Hicks’ executive leadership of it.

Bottom left, Councilman McFadden and Town Manager Hicks chat after meeting is adjourned in record-setting time.

Asked to elaborate, McFadden pointed out he had not been on council during the approximate two-year process leading up to the decision to create a unilateral Town EDA while distancing itself from the existing joint County-Town EDA. He told Royal Examiner by email: “I think that the appointment of Mr. Hicks is the best possible option, given the circumstances. Mr. Hicks will do an outstanding job in this additional role. He is highly competent and Front Royal is fortunate to have him. But I don’t think that the position should even exist. I told him so immediately following the meeting.”

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EDA in Focus

EDA welcomes Town Manager Steven Hicks to meeting & gets good news from McDonald bankruptcy hearing

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Things appear to continue to be turning in a positive direction for the Warren County Economic Development Authority (WC-EDA) in the wake of the recent sale of the Afton Inn for redevelopment by the 2 East Main LLC investment group. On the heels of that sale, authorized at a Special Meeting of February 12 and finalized a week later, the WC-EDA held its monthly meeting by way of the now familiar virtually connected ZOOM format the morning of Friday, February 26.

Two things stood out during the open session sandwiching a 57-minute closed session. The first was the welcoming of Town Manager Steven Hicks shortly after the 8 a.m. meeting start. It was the first appearance of a town manager with an accompanying update on Town business at an EDA Board of Directors meeting in about 18 months.

Beginning with the Afton Inn sale, it appears a newly thawed relationship between Town Hall, at right, and the WC-EDA has begun. It continued with Town Manager Steven Hicks presence at the Friday, Feb. 26, EDA Board meeting. Royal Examiner Photos by Roger Bianchini

That traditional line of communications was terminated during the tenure of former Interim Town Manager Matt Tederick as the town government took on an increasingly adversarial and litigious stance with the EDA as a revamped EDA board worked to right its ship in the wake of the $21-million-plus financial scandal alleged to have developed during the tenure of former EDA Executive Director Jennifer McDonald.

EDA civil litigation gets reboot

The second positive note came post closed session during Board Chairman Jeff Browne’s Executive Committee Report. Browne acknowledged a decision by Harrisonburg-based U.S. Bankruptcy Court Judge Rebecca B. Connelly returning consideration of exactly what assets Jennifer McDonald can claim as part of her bankruptcy filing to the state court level.

“The bankruptcy court has remanded her particular case to state court to assess damages, at which point damages are assessed it will go back to the bankruptcy court to decide whether or not it should go back to the state courts or be handled in the bankruptcy court,” Browne told his board.

Contacted after the meeting, Browne elaborated on the implications of Judge Connelly’s ruling. He explained it will allow the EDA’s civil litigation against McDonald to re-start to determine exactly what EDA assets McDonald may have misappropriated and how they may have been used to purchase properties or other tangible assets. Her surviving real estate company MoveOn8 is also part of her bankruptcy filing, he noted.

The EDA’s civil litigation against Jennifer McDonald, on the job in December 2016 as the late Patty Wines, right, chairs meeting, and other co-defendants not in bankruptcy court, can once again proceed at the state level in the Warren County Courthouse.

When the state court findings are returned to the U.S. Bankruptcy Court in Harrisonburg, Judge Connelly will determine what assets McDonald can legitimately claim as her own that are subject to bankruptcy claims and asset distribution, versus what assets held by her or her real estate company the EDA would have civil claim to as restitution for her alleged criminal acts of embezzlement and misappropriation of EDA funds to her own use.

A virtual Town-EDA ‘lovefest’

Back on the Town-EDA relations front, EDA Board Chairman Browne welcomed Hicks by virtual connection, offering him the opportunity to give his report prior to adjournment to the closed session. And while an opening portion of that report was acknowledgment of the town council’s decision to move forward with creation of its own EDA with Hicks as executive director, that there was a renewed sense of Town-EDA cooperation was soon apparent.

“As town manager I’m here to help in any way I can,” Hicks told Browne and the four-member EDA Board quorum present virtually (Browne, Harold, Pattison, Wolfe), before reporting on the status of the Town’s FY-2022 Budget process.

“I just want to congratulate you on your new position. You must have found the secret to a 48-hour day,” Browne told Hicks at the conclusion of the town manager’s report. “I just want to tell you for our board, that anything we can do to help in the areas you’re focused on: redevelopment, tourism, retention of businesses are all good things that we look forward to working with FREDA (Front Royal Economic Development Authority) on.

EDA Board Chairman Jeff Browne, above virtually at Friday’s EDA Board meeting, and Front Royal Town Manager Steven Hicks, below in file photo of recent council meeting, seem to be on the same page on cooperation between now separate County and Town EDAs.

“We would like to work with you and coordinate with the Town. I think that we can do a lot to help economic development for the entire area. So, we appreciate you’re stepping up and taking on what will be a challenging task,” Browne added of Hicks new dual role.

“Will do – I’ll definitely stay in contact and share everything as much as I can with you and Doug (EDA Executive Director Doug Parsons) and Ed (Warren County Interim County Administrator Ed Daley). So yea, sounds great,” Hicks replied.

At that point EDA Board member Jim Wolfe, who has taken point in his board’s work on development of short and long-term Strategic Planning on economic development and job creation, joined the conversation. Wolfe offered to get a copy of what the WC-EDA has done on that front recently to Hicks by Monday.

“Then you and I can sit down and talk about it at some point. And if any other board members want to join me … So, I want to make sure that the … Town has our plan and use that for a touch point for how you coordinate on different projects,” Wolfe said of developing a unified plan of action community wide.

EDA Board member Jim Wolfe jumped on the Town-County EDA cooperative bandwagon with an offer of added assistance from himself and other EDA board members, to Hicks in his new role as FREDA executive director.

“I’d appreciate that,” Hicks replied, perhaps seeing his “48-hour days” reduced in some measure by that level of County EDA involvement with his work on the Town side. Continuing in that vein of cooperation, Hicks added, “Again, I just wanted to call in (on ZOOM) and touch base with you all and be as transparent as I can. And always reach out to me when you need anything, and I’ll do the same.”

“Good, thank you so much,” Browne replied to the new attitude being reflected out of Front Royal Town Hall as Hicks signed off from the meeting.

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Fire & Rescue staffing grant process, Happy Creek Rd. closure impacts highlight County work session discussion

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The Warren County Board of Supervisors met for a work session on February 23, 2021, to review and discuss ongoing work by county departments to forecast funding needs and scheduled projects in the offing in an uncertain funding climate. Newly appointed Fire Chief James Bonzano and Fire Marshal Gerry Maiatico provided the supervisors with a FEMA grant program the department has been using called Staffing for Adequate Fire and Emergency Response, or SAFER. According to FEMA, SAFER grants fund fire departments and volunteer firefighter interest organizations directly to help them increase capacity in their communities. The 2020 request will close March 12 and will require the Supervisors to decide before then how to allocate between $965,000 and nearly $2 million among the fire stations should the grant at the maximum level be approved. The 2020-21 budget for the entire Fire & rescue department is $3.1 million.

County Fire Chief James Bonzano, left, makes a point about Grant-funded staffing for Fire Stations in an era of increasing demand.

Ed Carter of VDOT provided an update of the Happy Creek Phase IV improvement project that was originally planned to require a road closure from June 14 to July 30 to coincide with school summer break. He explained that this project is intended to improve the roadway by eliminating some curves, hills, and blind spots.

The project has already been bid, and the bid was substantially lower than originally estimated, based on the projected closure of Happy Creek Road, giving the contractor unobstructed access to the site without having to maintain public access to the road during construction, which is planned to be completed in December.

The road closure will extend from Leach Run Parkway to Dismal Hollow Road. The reason for the possible extension is that since the project requires temporary relocation of utility lines and the Norfolk Southern Railroad must issue permits for that to happen on their right-of-way, Rural Electric Cooperative and Comcast must submit requests for the permits.

The permits were not requested as soon as they should have been, and it may not be possible to have those permits in hand prior to the scheduled construction start. In that event, Mr. Carter indicated that there may be a necessity for a two-week extension of the temporary closure. VDOT and the Town will coordinate with the school district to develop a plan if the extension of the road closure becomes necessary. Access to both Shenandoah Shores Road and Loop Road will be continued during the closure, and provision will be made for emergency vehicles.

Board of Supervisors Chair Cheryl Cullers reviews Project documents for the Happy Creek Improvement Phase 4 as the VDOT representative Ed Carter explains the potential for a delay in reopening Happy Creek Road after the current improvement project.

The School District representative, Aaron Mitchell, indicated it was a challenge to plan a reroute to accommodate the closure, then revert to a normal route within two weeks. It would be particularly hard on parents.

The closure extension may not be necessary, but if it is not possible to work out a plan for the closure, Mr. Carter indicated that the project could be pushed to next year.

VDOT will undertake to have a discussion with the school superintendent this week.

Residents of Happy Creek Road will be vitally interested in progress towards a solution as the start of this improvement project nears.

Watch the Board of Supervisors meeting here.

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Judge hears arguments on Downes vs. Front Royal parking/zoning case dismissal motion

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A decision on the Town of Front Royal’s Demurrer motion for dismissal of David Downes civil action seeking to overturn the Town Council’s decision not to reverse existing zoning requirements that he maintain 9 to 15 on-site parking spaces at his two Chester Street properties could be forthcoming within two weeks. Substitute Judge Craig D. Johnston of Prince William County cited that “hoped for” timeline after taking 2-1/2 hours of arguments under advisement shortly before 4 p.m. Tuesday afternoon, February 23.

Local defense attorney and Virginia Beer Museum proprietor Downes represented himself in the case heard in Warren County Circuit Court. The Town of Front Royal was represented by Heather K. Bardot of the Fairfax-based law firm of Bancroft McGavin Horvath & Judkins, PC. The Town’s legal representation is covered by insurance through the Virginia Risk Sharing Association (VRSA), a subset of the Virginia Municipal League (VML).

One interested observer in Circuit Courtroom “A” was Town Attorney Doug Napier, who appeared to be taking more notes than the two reporters present. What he and those reporters were scribbling occasionally frantically about was the fundamental issue of whether Plaintiff Downes civil filing contains adequate grounds to proceed to trial.

Bardot and the Town contend that no, it doesn’t, as reflected in their Demurrer filing of January 7. Downes countered in support of his February 8 reply to the Town motion for dismissal, that he has made sufficient cause to being singled out as what he termed “a party of one” treated in an “arbitrary and unreasonably” different manner than other business entities, property owners and museums in Front Royal’s downtown business district, save one. And that one, a residential rental building across Chester Street, is only mandated to keep three off-street parking spaces, Downes observed.

Disputed properties at 14 and 16 Chester Street from front, law office at left, Va. Beer Museum to right. Below, the disputed 9-space parking area at rear of the properties now partially used for outdoor museum seating and events, weather permitting. Royal Examiner Photos by Roger Bianchini

The dispute centers around Downes’ law office at 14 Chester and adjacent Virginia Beer Museum at 16 Chester Street. Existing Town Zoning requires that he maintain a total of 15 off-street parking spaces, nine in the rear of the two buildings and six abutting the Town’s Peyton Street parking lot on the north side of the Beer Museum. Primarily at issue are the nine spaces in the rear of the two buildings. Downes noted that employee-wise, he doesn’t need more than one or two parking spaces for either business.

Downes contends that, not only has the Town singled him out for a standard different for other businesses in the downtown district, but also in the case of the Virginia Beer Museum, differently than other museums and art galleries in the area. His rezoning request would allow him to revamp the rear portion of his property into an expanded Biergarten and events area for his museum dedicated to promoting Virginia-brewed beers and beer’s role in the history of the American nation.

On the Town’s behalf, Bardot countered that Downes had inherited the zoning’s parking requirements, particularly as to the 16 Chester Street property, dating back to 1992. Downes noted he has had his law office at 14 Chester since 1999. Bardot also pointed to business growth projections for Front Royal’s Downtown Business District, including the redevelopment of the Afton Inn, that will require additional downtown parking that will negate Peyton Street parking availability statistics overlapping Downes’ rezoning request initiated in 2017 and finally denied by the town council in January 2019.

Downes has pointed to a parking study the Town initiated the year prior to his rezoning request that indicated 22 of the available 42 spaces in the Peyton Lot area as available on average. Countering that, Bardot noted that once Downes fenced off the rear area of his property that availability had changed to 27 of the 42 spaces being taken, an increase of 16% occupancy she noted.

Above, Chester St. entrance to the Town’s Peyton St. parking lot adjacent to Va. Beer Museum around noon on a weekday. Below, the Beer Museum’s 6 north-side parking spaces abutting the Peyton St. lot. Downes has said he is willing to maintain those spaces, which he believes coupled with available on-street and public parking availability is more than enough to accommodate his two properties.

Bardot also cited what she called “a very low standard of reasonableness” by which a court should judge legislative decisions because the judicial branch of government is not supposed to interfere unduly with the legislative branch’s function. The dueling attorneys were also at odds over whether a Constitutional aspect of the case related to the discriminatory nature Downes claims is being applied to him in a “piecemeal” manner is still at issue in the case. The case was originally filed in federal court, but the two parties agreed for it to be moved to state court jurisdiction.

“Of course it’s piecemeal – that’s why I’m here,” Downes told the court. He said that any of the three zoning options he had offered the Town would have addressed and solved that discriminatory nature of the existing zoning he is claiming. “I have to maintain these spaces – the burden shouldn’t be on me – it must be uniform (by zoning code) he asserted. Downes noted a formula at the root of the existing zoning by which he is supposed to have a parking space for every 300 square feet of building space, a condition not applied to other businesses or museums in the downtown area.

Royal Examiner file photo of Downes addressing Front Royal Town Council last year on the local opioid crisis, where they found common ground. – But about that parking situation …

Of his claim the Town is violating Constitutional guarantees of equal protection under the law in its demand of the parking space requirements directed at his properties, he concluded, “We’ll just have to agree to disagree” that it was still in play at the state court level. In that regard, Downes cited Virginia’s Dillon Rule which prevents municipal governments from exceeding authorities not granted at the State level. – “Under the Dillon Rule the Town can’t do unconstitutional things,” he argued.

Bardot countered that rather than the “arbitrary and capricious” standard being violated by the Town, Downes simply disagreed with a council decision that could be viewed as reasonable in light of evidence of coming downtown parking needs.

Both attorneys cited case law in support of their opposing contentions on the level of proof necessary and present in the Downes litigation. “I’m living with Williams for better or worse,” Downes told the judge of one of his case law references.

“The Town has no obligation to show reasonableness until Mr. Downes shows unreasonableness,” Bardot told the court, adding that Downes’ amended complaint failed to meet that standard as illustrated by the public hearing debate and planning commission recommendation of denial.

However, Downes argued that much of the opposition to his request from nearby business or property owners upon which either the planning commission or town council decisions were based were not relevant to the zoning amendment at issue. Rather, he asserted much of the negative public comment amounted to specific dislikes of either a fence he installed around his back area to address security concerns or the fact the museum served beer, neither being relevant to the zoning and resultant parking requirements at issue in his litigation against the Town.

The attorneys also debated the relevance of meeting summaries versus transcripts and public comments for or against the rezoning request beginning at the planning commission public hearing level. As noted above, Bardot pointed to public opposition to Downes’ rezoning amendment proposal and the planning commission’s unanimous recommendation of denial to further the defense contention the town council decision to deny was a matter of reasonable debate, rather than an arbitrary or capricious decision aimed a lone property owner’s way.

“This goes back to the first year of law school, but don’t lose sight of the forest for the trees,” Downes countered of peripheral issues cited by opponents of his zoning amendment request referenced in the defense motion. Bardot suggested that the plaintiff was mixing apples and oranges in arguing against the defendant’s Demurrer request for dismissal of his case based on a fundamental standard of evidence required to proceed to trial.

Judge Johnston observed that “There are lots of apples in this case – how they relate to the oranges in the defense” was what was at issue for him to determine.

And within the next couple of weeks the plaintiff and defendant will know exactly how the judge juggled those apples and oranges in coming to a decision on the Town’s motion for dismissal of Downes’ case against it.

The Warren County Courthouse from where a decision on the Town motion to dismiss Downes’ litigation will be forthcoming. Below, another perspective on area at rear of Downes properties.

See the Town Demurrer filing and the Defense and Plaintiff motions in support and opposition to it at these links:

  1. Demurrer
  2. Defendant’s Memorandum for Demurrer
  3. Memo in Opposition to Demurrer – Parking
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Local Government

Amended Town Press Release on Hicks assumption of dual Town Manager/EDA Director job

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Editor’s Note: Following the submission of several questions from Royal Examiner to the Town about Mr. Hicks appointment to the EDA Executive Director’s position, this amended press release was issued after 5 p.m., Tuesday, February 23, under the headline “Steven Hicks, takes on an additional role as FREDA Executive Director”

Front Royal, VA (February 23, 2021) – Last night the Front Royal Town Council formalized the establishment of the Front Royal Economic Development Authority (FREDA) effective March 15, 2021. To oversee FREDA, Council plans to appoint Steven Hicks as the Executive Director in addition to his role as Town Manager at his current salary. Council and Hicks felt this approach would offset the cost of hiring an Executive Director to save the taxpayer’s dollars.

Hicks has significant experience in leading public-private development projects targeting downtown revitalization. In Selma, N.C., he partnered with Eastfield Crossing Developers and Duke Energy to amend a 400-acre mixed-used development and incentive agreement to increase the Town’s tax base and create 3,100 jobs.

Hicks has a Master of Science Degree in Civil and Infrastructure Engineering (USE) from George Mason University and a Bachelor of Science Degree in Urban Studies from Virginia Commonwealth University. He is a graduate of the University of Virginia Darden School Senior Executive Institute, the University of North Carolina School of Government Municipal and County Administration, and the Virginia Tech Transportation Construction Management Institute.

He served as the Commissioner of North Carolina Eastern Municipal Power Agency, Triangle East Chamber of Commerce Board of Director and Uptown Selma Business Partnership Board Director. He is a member of the International City Management Association and Virginia Economic Developers Association (VEDA).

Council is currently seeking applicants to serve as members of the Board of Directors. Applications are available on the Town’s website at www.frontroyalva.com and will be accepted until March 31, 2021.


(The following press release was issued by the Town of Front Royal shortly after Mayor Holloway read it into the record of the Feb. 22 Town Council meeting, Monday evening.)

The Front Royal Town Council is pleased to announce plans to establish the Front Royal Economic Development Authority (FREDA) on March 15, 2021, and will be naming Town Manager, Steven Hicks as the Executive Director. The Town is currently seeking applicants to serve as members of the Board of Directors until March 31, 2021. Last year the Virginia General Assembly authorized the formation of the FREDA. Since that authorization, the Town has codified the Town EDA in Town Code.

New Front Royal Town Manager Steven Hicks, right, at council meeting staff table with Matt Tederick, has been named Executive Director of the newly formed Front Royal Economic Development Authority.

The decision to move forward with FREDA was not taken hastily or lightly. The Town’s decision to move forward with its own independent EDA has more to do with the present and future rather than the past.

The Town has re-development and economic development needs now that Council does not believe the County’s EDA is in the position to perform. Small businesses have been impacted by the pandemic and are in need of recovery. In addition, there are many empty storefronts now and Council hopes we can prevent more in the coming years. Having FREDA will also make it easier and quicker to improve the quality of life and appearance of Front Royal by addressing blighted properties through various tools and resources available to EDA’s.

The challenges facing the current County EDA are significant. For example, on September 25, 2019, the EDA agreed to enter into a Confession of Judgment with The First Bank and Trust.

The Confession of Judgment and supporting documentation appear to indicate the following:

• The sum for the judgment is $9,015,742 at an annual interest rate of 6%

• The loan was a line of credit up to $17 million

• Security for the loan in part stated, “Security agreement granting an interest in all the borrower’s accounts and government payments and programs including but not limited to all present and
future payments now or hereafter appropriated and made or to be made by the Town of Front Royal, Virginia and/or the County of Warren, Virginia, to the borrower….”

Based upon legal interpretation, this Confession of Judgment means all EDA assets not currently secured by another party are subject to the Confession of Judgment or in essence, the property of The First Bank and Trust Company up to $9M. This Confession of Judgment impairs buying property for the County or the Town unless the bank allows it. If the EDA enters into a lease, lease revenues would go to The First Bank and Trust Company. Due to the low creditworthiness of the EDA, it cannot obtain bonds, loans, or other types of financing without the County and/or Town’s direct involvement. Couple this Confession of Judgment with the EDA’s insolvency, ongoing litigation, lack of three years of audits, and low creditworthiness, it will be difficult for the EDA to function as a traditional EDA for many years in order to help our community, specifically our Town.

The Front Royal Town Council is committed to working in partnership with Warren County and its EDA. By no means should the Town’s initiative to focus on the Town’s re-development be construed as an unwillingness to work with the County. We just believe from a business perspective; formalizing FREDA is the only way the Town can focus on re-development with real results.

The Town Council would consider joining the County’s EDA in the future once all the following takes place with the County’s EDA:

1. It not only has produced missing audits but previous and future audits need to be clean.

2. It is solvent.

3. The Confession of Judgment is released.

4. All possible criminal investigations and civil litigation has been concluded.

5. The Town taxpayers have recovered all misappropriated, stolen, or fraudulently obtained assets by the EDA or its employee(s).

As part of the Town’s FY22 Budget, the Town will be able to invest $100,000 without sacrificing services to start FREDA. Additionally, the Town anticipates receiving over $100,000 from the sale of real estate which will be re-invested into our Town.

In conclusion, considering the state of affairs with the County’s EDA and in consideration of the Town’s needs to expand its tax base through economic development and marketing, it is imperative that the Town move towards ramping up its own EDA as soon as possible.

If any member of the public has any further questions, please contact Todd C. Jones, Town Public Information Officer.

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Upcoming Events

Mar
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6:30 pm Dance Fitness Class @ Warren County Community Center
Dance Fitness Class @ Warren County Community Center
Mar 9 @ 6:30 pm – 7:30 pm
Dance Fitness Class @ Warren County Community Center
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10:00 am HSWC Polar Plunge @ Culpeper Lake at the 4-H Center
HSWC Polar Plunge @ Culpeper Lake at the 4-H Center
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HSWC Polar Plunge @ Culpeper Lake at the 4-H Center
The Humane Society of Warren County “Polar Plunge” delayed from February 20 due to “too-polar” weather here in northwestern Virginia has been rescheduled to Saturday, March 13 – Don’t worry, it will still be a[...]
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16
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6:30 pm Dance Fitness Class @ Warren County Community Center
Dance Fitness Class @ Warren County Community Center
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Dance Fitness Class @ Warren County Community Center
This class is for all fitness levels and anyone who is looking to have fun dancing to a variety of music styles from hip hop to swing to salsa, all while EXERCISING! This class will[...]
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23
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6:30 pm Dance Fitness Class @ Warren County Community Center
Dance Fitness Class @ Warren County Community Center
Mar 23 @ 6:30 pm – 7:30 pm
Dance Fitness Class @ Warren County Community Center
This class is for all fitness levels and anyone who is looking to have fun dancing to a variety of music styles from hip hop to swing to salsa, all while EXERCISING! This class will[...]
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2:00 pm Pictures with the Easter Bunny @ Warren County Community Center
Pictures with the Easter Bunny @ Warren County Community Center
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Pictures with the Easter Bunny @ Warren County Community Center
Come join the staff of Warren County Parks and Recreation and get your picture taken with the Easter Bunny! Pictures will be taken and printed on site; upon departure you will be given an Easter[...]
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30
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6:30 pm Dance Fitness Class @ Warren County Community Center
Dance Fitness Class @ Warren County Community Center
Mar 30 @ 6:30 pm – 7:30 pm
Dance Fitness Class @ Warren County Community Center
This class is for all fitness levels and anyone who is looking to have fun dancing to a variety of music styles from hip hop to swing to salsa, all while EXERCISING! This class will[...]
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12:00 pm Egg-stravaganza! @ Sky Meadows State Park
Egg-stravaganza! @ Sky Meadows State Park
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Egg-stravaganza! @ Sky Meadows State Park
Eggs are popping up all over Sky Meadows State Park. Visit our egg-laying free-range chickens by taking our Chicken Walk. Go on an egg-citing Geocache adventure. Kids, use your scavenger hunting skills using clues from[...]
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all-day Shenandoah Epic @ Caroline Furnace
Shenandoah Epic @ Caroline Furnace
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Shenandoah Epic @ Caroline Furnace
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Earth Day @ Sky Meadows State Park
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Earth Day @ Sky Meadows State Park
On this Earth Day, celebrate safely by doing your part to restore our earth and joining the Great Global Cleanup. Stop by one of our tables at the Explorer Outpost, Picnic Area, or Lost Mountain[...]