MINUTES OF THE SPECIAL MEETING OF THE TOWN COUNCIL FOR THE TOWN OF STRASBURG, HELD ON MARCH 29, 2006, AT 7:30 P.M. IN THE COUNCIL CHAMBERS OF THE TOWN HALL.
Mayor Crisman opened the meeting with the Pledge of Allegiance and the invocation was given by Council Member Larrick.
ROLL Called with the following members present: Mayor Tim Crisman, Vice Mayor Taralyn Nicholson, and Council Members Henry Himelright, Wesley Larrick, Steve Nicholson, Tim Taylor, Edith Wallace, and Richard Wilson. Absent: Council Member Carl Rinker (Mayor Crisman said Council Member Rinker had chosen not to attend this meeting).
Mayor Crisman said the meeting had been called by Council Members Richard Wilson, Edith Wallace, Taralyn Nicholson, and Steve Nicholson for the purpose of discussing the possible appointment of a special committee to review the Cedar Valley project, to discuss the submission of plans to the Strasburg Town Council, its committees or Strasburg Planning Commission related to the Cedar Valley project and any other aspects related to the Cedar Valley project in the Town of Strasburg. This called meeting is in accordance with Section 10 of the Charter of the Town of Strasburg. He continued by saying public comments would be limited in time to three minutes and this would be strictly adhered to and that only comments related to the above mentioned purpose of the meeting would be heard.
Public Comments:
Kim Bishop, 728 Crystal Lane, Strasburg, VA: “I think you should have a joint committee look into this mess that is Cedar Valley, because as a citizen I would like to know exactly why this Council was so quick to push through the rezoning last May. The fact that one or more of the Council people is against a joint committee looking into these problems makes me want one all the more. If there’s nothing to hide then let’s get the Council and Planning Commission together and get things moving. I’d think the Council would like to set the record straight with the citizens of Strasburg, because I for one think that your rush to satisfy the needs of the developer trumped the needs to look further into the “plan” that was proposed last May. And let’s not forget that many people came forward with the very worries that you’re now dealing with. Maybe next time you’ll listen to the citizens before the developers. We need a joint committee, not just the Council, to look into this. Thank you.”
Joyce Gary, 744 Crystal Lane, Strasburg, VA: Mayor Crisman has proposed the formation of a joint committee comprised primarily of Council Members and Planning Commission members to look into the process which preceded the approval of plans for the Cedar Valley development.
Many of my neighbors and I voiced multiple concerns when this project was being considered and then approved, and now it appears our concerns were warranted.
While a committee process in and of itself can be long and problematic, at this juncture, it really is the only way to go, because we, Strasburg residents want – and deserve – to know what happened.
I would, therefore, like to go on record as supporting the Mayor’s recommendation for the formation of this committee. I also have statements from neighbors who are attending the Candidate forum, in support of the Mayor’s recommendation.
As an aside, Ms. Nicholson, you have publicly stated that you don’t want the Planning Commission involved in this because they, the Commission, work for you. If that is the case, then it follows that you, as an elected member of the Council, work for us – a fact that I think you forget – notably in your spearheading the scheduling of this meeting at a time in direct conflict with the candidate forum… which I for one, had to give up, in order to be here. This denies us basic civic rights, something you as an elected official, working for us, should protect. Maybe you should be fired. Thank you.”
Mayor Crisman stated comments should be limited to the subject at hand.
Ron Mislowsky, PHR&A, engineers representing the applicant: “I just want to briefly outline why I think we are here; after hearing the first two speakers, I’m not sure what I think the result of this meeting should be, but I’ll just offer this. Last May, Town Council approved the rezoning for the Cedar Valley property; as part of that rezoning, a master plan was proffered. In that summer, at the request of the owner of the property, Patton, Harris, and Rust prepared plans in accordance with that master plan that you all had approved. The master plan outlined areas for townhouses and single family, delineated lot dimensions to be followed for single family and townhouse lots. Over the summer we completed those plans and submitted those plans to review agencies --- the Town, Dewberry and Davis, the County, and also to VDOT. By the end of the year, we had gotten approvals from agencies on the plans and came to the Planning Commission anticipating a review of the plans and to get some comments and to work through those and go to approval. The Planning Commission informed us at our first meeting in February that plan was not in accordance with the master plan. There was some discussion on that and we took out the master plan that you all had approved in May and the Planning Commission - and I don’t want to speak for the Planning Commission, this is just my take on that – that was not the master plan that they had seen in January of that year preceding Council action. They approved a different version of that layout; when the plan went to Council, after receiving comments from Council and working on some proffers, the layout was modified slightly --- the number of townhouses was reduced and there were a few other changes, I think, and then Council approved a master plan. One of the issues I feel needs to be worked out is what master plan the Planning Commission needs to use when evaluating our subdivision and site plan for Cedar Valley. The second major issue that came up is the townhouse layout. The Planning Commission has found different parts of the ordinance that would lead one to believe that there should be no private streets in Strasburg. I tried to look at the townhouse developments that have been approved over the last couple of years and they all seem to use private streets to some extent and in fact, Section 3-10 of the zoning ordinance that pertains to townhouses says that the parking layout has to be designed so that cars will not back out onto a public street, which means you’ve got to have a private driveway. Our reading of the townhouse ordinance, and it appears that other engineers and other consultants, would lead you to believe that private streets are required so I think that the second thing that the Council needs to determine is if private streets are allowed in the townhouse sites. I’m sorry to go over my time and I’ll be happy to answer any questions. Thank you.”
Leon Smith, 267 S. Holliday Street, Strasburg, VA: “I would like to encourage you to endorse the concept of the joint committee to look at what is the appropriate master development plan for this project. I’m looking at it from a Planning Commission point of view and the next step that we have to do is look at a site plan. What we need, the way a planned development is supposed to operate, is the master development plan will show where everything is, how it goes, so that when we get to the site plan process, there is no guessing or no changes that are permitted unless you go back and re-do the master development plan. That problem that occurred is the master development plan that we have in front of us from the Town Council really doesn’t give Planning Commission any guidance whatsoever as to what should be there and that is what I need to be addressed to do my job and I’d appreciate if you’d do that. Thank you very much.”
Mayor Crisman stated Council Member Rinker had brought him a statement to read at this meeting. He said there were several comments in the statement that “do not address the subject of tonight’s meeting; I will read the section that does. Addressing the agenda items for which this special meeting was called: (from Council Member Rinker’s statement):
(1) “The Mayor came up with the suggestion to appoint a committee to review the Cedar Valley Project, then I feel he is the person to appoint these members to serve on this panel.
(2) The Planning Commission should look at our ordinance pertaining to plans submitted and our approval process, then come back to Council with recommendations or revisions.
(3) As far as the approval process for Cedar Valley is concerned, I’m really not sure who is responsible for the mistake of plan approval by Council without Planning Commission review. This is something we need to find out and correct. I feel that this approval has already been granted, right or wrong, we may have to live with it. Do I approve of this? No, I really don’t but I feel since this was the first project of its kind in Town, we all can’t be perfect with our decisions, even though we try very hard, we are human, too. Should we now rescind the approval for this project? Again, I am not sure.
As much as I dislike what is being done out there, I feel that at this juncture in the process, starting the approval process over for this project could possibly be inviting a lawsuit against the Town in a financial magnitude of tens of thousands of dollars. This is something financially and politically this community cannot afford. Therefore, let us review our ordinance, make the necessary changes and therefore, eliminating the possibility of a potential mistake of this kind from re-occurring.”
Mayor Crisman said this concludes the comments permitted from Council Member Rinker’s statement.
Dialogue from Council Members:
Vice Mayor Nicholson: She started by saying she knows scheduling was bad timing, “but I didn’t have any choice in picking tonight. I stood with my fellow Council Members to come up with a release that we were going to have a Council Meeting and tonight was the only night that was open for everyone else that was involved, including the Town Attorney.”
Vice Mayor Nicholson said, in the past, the rep from Council to the Planning Commission would make a report back to Council, but since the Town hired a Town Planner, this person does the work as to if plans should be approved or disapproved and a report is not given by the rep. She continued saying, “we are not letting that person give that report anymore. I believe we can go back to when Councilman Wes Larrick was the rep and now Mayor Crisman; we’re not getting that report from you all and I’m not pointing the blame at you all. We allowed it to happen because we had a planner, and we’re paying her to be a planner so we were letting her do her job. We weren’t getting the information that there were some inconsistencies.” She said the issue started appearing in the minutes “back in January, at least, when I can see and we’re not reading them. Just as you said like a year and a half ago, we’re not doing our job --- granted they are about 10 pages long so it is hard to read them from front to cover.” She is also concerned with stopping rumors before they get too big, “especially with the integrity of the Council being in question. We should stop it, deal with it, and not let it keep rolling month after month and not addressing it.” This issue was not addressed at the March Council meeting and Council still does not know if a mistake was made or not because it has not been discussed at any Council meetings.
How to fix the problem: Vice Mayor Nicholson thinks a report should be given by the Council rep along with the report from the Town Planner. She would also like to have a one page bullet statement on the minutes to tell what is happening at the meetings that is important. She asks that the media call and ask more than one Council Member for opinions. She said these are the reasons she asked that a panel not be appointed. When the ordinances were worked on, the Planning Commission was represented. One item of business coming from the Summit of 2003 was to work on the ordinances, to get rid of the ambiguity; this has been done, but there are holes in them, even with the Planning Commission being represented when dealing with this. She feels the Ordinance Committee should work on these as there is ample opportunity for people to speak at Council meetings and at the Public Hearings which are required before an ordinance can be changed. She also asks if the mistake on this was made almost a year ago, “why did it take a year for it to come to a head; why did we hear these two pages of concerns -- I believe two of them were from Commissioner Kepler, a page and a half were from Chairman Smith – why did it take that long.” She thinks it would help to get a report from the Planning Commission chairman periodically. “I think that would be helpful that if there is an issue that maybe has gotten pushed aside because something else has come up, then that way we can deal with it.”
Council Member Nicholson said he was on the Ordinance Committee when they were reviewed and they were looked at page by page and there are still holes. It is this committee’s job to look at these. He said a list should be given to the developer that says what needs to be done to meet the ordinances. “Sooner or later that ground is going to be disturbed, whether it is today or tomorrow, and I don’t see a difference whether it is today or tomorrow; to me we’re only fighting about what’s going to be in there. We complain that cedar trees are gone; well, quite frankly, if anybody wants any cedar trees, I have plenty and I can get them as many as they want.”
Vice Mayor Nicholson would like to back up and see if a mistake was made before the committee is set up. Look and see what was looked at by both the Planning Commission and the Town Council and then move on from there. Find out where the mistake was made, if a mistake was made.
Council Member Larrick does not think a mistake has been made. “We received a letter in our packet, a memo from Kevin (Town Manager Fauber) who received it from the E & S guy in Woodstock saying there wasn’t a problem. We received another memo from the E & S guy after our Council meeting and I read that over and the attorney for the Board of Supervisors also made comments and they said in issuing permits everything was legal.” Mayor Crisman said he feels this is a separate issue and one he doesn’t feel should be discussed at this time, but to focus on the master plan. Council Member Larrick said he thinks a committee should be appointed, but he asked fellow Council Members, “if you had a problem with the Mayor appointing this, and I understand he has already began because I got a call asking if I wanted to sit on the committee, why didn’t you say something at the March Council meeting? Why did you wait til now to bring it up?”
Council Member Wilson said, “I think it’s time we put our differences aside, whatever they may be, and think of what’s best for Strasburg. We can sit here and point fingers all night and it’s not going to prove anything…That project is started, yeah you can stop it, but we’re going to get sued; there is no doubt in my mind if we stop that project. I think we need to do what’s good for the Town of Strasburg and stop pointing fingers at each other and get on with this thing. I don’t think the citizens here want to spend money on a frivolous lawsuit; I don’t want my tax dollars going for that. I think we can resolve this, in short term, and I think that is what needs to happen.”
Council Member Taylor said he has read the minutes from previous meetings and he thinks the discussion on making sure a problem like this doesn’t happen again is a separate issue. “Obviously, the code needs to be addressed; there’s no doubt about that. We did and it wasn’t because of lack of effort, there’s no doubt about that, but again, this is a new ordinance and everybody reviewed it like they were supposed to. Again, that is something that I think, along with procedural things we will look into, but again the issue is what you have stated, we’ve got to decide what we are going to do now about this specific problem.” He continued by saying he has read and talked to the Town Attorney and has learned there are a couple of options “so what I wanted to see was this committee get together, hear their input, and again, I didn’t want it to be a large committee --- I kind of had in mind who I see be on the thing --- and then basically, once they’ve discussed it, then I think there are going to be options that come back to us and we have to make a decision on it; this body makes the decision.” He wanted to know from the Town Attorney what the Council’s options are --- “is this plan viable; is that plan viable? Basically that’s the problem is that there are two different plans out there. I’ll be the first to admit the mistake I made is this, we got so wrapped up in proffers; I was the one who said less townhouses because that is what I was hearing. Obviously the plan back in October, to me, looks better than the plan they’re looking at in April, but again, the reason that was changed was because I requested fewer townhouses and I got so wrapped up and getting involved in looking at the proffers, I didn’t even consider that obviously if the townhouses are reduced, there has to be a different master plan. I made that mistake right there. But, again, there were various mistakes that I think were done along the way and I think they have to be addressed, but again, that’s a separate issue. I think we have to make a call on what has to happen on this specific project. I’ve read minutes, like I’ve said, but I thought the committee could give us some more, make sure everybody has input, and from that committee, and I’m not talking about a long, extended period of time, I see them get together and get it done and they can come back to this
Council with options and you all make a call on it. That’s the way I see this thing happening.”
Mayor Crisman said, “First of all, speaking from my position, I think there’s a huge problem here and one of the biggest problems is no one can admit a mistake was made. It was; many mistakes were made. Some of them you can improve administratively; some of them you can’t. The one regarding the master development plan may be a legal issue and I’ve asked for the Town Attorney to be involved in the special committee. It may be a legal technicality that solves this riddle for us, but what I haven’t heard from anybody in the three months that this has been an issue is how to resolve it. No one is working toward resolving the issue; everybody is pointing fingers, blaming each other, talking about each other behind their back, saying incorrect things and giving false information to the newspapers, and frankly I’m fed up with it. I want the issue resolved. No one has offered one bit of information saying this is my suggestion of how to resolve the issue of the master development plan; it’s time to do that. I didn’t say set up the committee to point the finger and find the blame; I said resolve the issue --- quickly --- thoroughly, but quickly. And, that is what I expected. Now, if you’re telling me, as a Council, that you can resolve the issue, without the benefit of having Planning Commission involved in it, then that’s one item. But, I’m hearing conflicting opinions here. I do think the issue needs to be resolved; I do think there are some legal issues involved with it. I’m not sure what the answer is to it; I know what I feel, but it may not be correct. So, where do you want to go? Does anybody want to make a motion of which way to resolve the master development plan issue?”
Council Member Wilson said he would like to know what the legal issues are in this matter.
Town Attorney Arthur said, “It occurs to me that you had a master plan that we’re aware of that was presented to, or a purported master plan, that was presented to Planning Commission at some time. That master plan, and with technical adherence to our Code, did not meet all the requirements of the Code.” He continued by saying Town Manager Fauber had given Council a summary and “I think that master plan, and correct me if I’m wrong on any of this, was recommended for approval by the Planning Commission and sent on to you (Council). Somewhere in the process of sending it to you, there were major changes made to the purported master plan, again that master plan probably did not adhere to all the technical requirements of your Code, and the Town Council saw fit to approve the amended master plan, purported master plan again, the amended, purported master plan and to take those amendments and pass the master plan as amended. It is my understanding, just as a side issue now, that there has been a third rendition of that master plan in concept with the second master plan that you folks approved that has been presented and Kevin (Town Manager Fauber) informs me, I haven’t seen it, that it does in fact meet the technical requirements for the Code for a master plan. Subsequent to that, after the approval, you approved a rezoning and a master plan; then your planned unit development ordinance says that the developer should come back with a site plan to the Planning Commission; the Planning Commission gives its approval or disapproval to that, and if there is a disapproval the Planning Commission must tell the developer what needs to be changed or tweaked or fixed in that site plan. That’s a ministerial obligation there; it’s an administrative obligation and it’s not one of whether or not you can turn down a project at the time of site plan approval; it’s to get the site plan right and in adherence with the Code. Let’s back up to the master plan now. The question comes up, and I don’t have the answer to this, the question comes up under the law in Virginia as to whether or not your passing of a master plan that did not meet all the requirements of your Code, and your passing of a rezoning that perhaps did not meet all the requirements of the Code because of that master plan deficiency, amounts to a vesting of rights that the developer could rely on --- that’s the question.” He sited several areas of law pertaining to this. “Prior to 1998, vesting was a matter of common law in Virginia --- that’s gone; we’re post 1998 obviously. After 1998, there’s specific law in the statutes of Virginia ---common law being the law that’s been followed down through the years as opposed to statutory law that has been passed by the legislature and codified into the Code Book --- The law now in Virginia provides that a landowner’s rights are deemed vested when three events occur: 1)he obtains a significant, affirmative governmental act which remains in effect allowing development of a specific project; … 2)that he relies in good faith on that act; and 3)that he incurs extensive obligations or substantial expenses pursuing the project in reliance on the affirmative act.” He said he cannot tell exactly when that right vests, but can site cases that have taken it up. “The most recent case was the case of the City of Suffolk vs. the Board of Zoning Appeals of Suffolk in which a similar question to ours came up. In that case the court held that there was a vested right; that the general development plans met the statutory requirement in that situation --- different situation, similar to ours. I couldn’t find any other case which was right on point and you usually don’t find cases that are right on point; every case is the same, every one is different.” He said the question comes down to if there has been “sufficient actions and reliance on those actions for a right to vest in the developer of Cedar Valley to make a vested right on which he can rely and continue. I think then you have to determine from those issues what you do and how you go forward. It seems to me, and I’m going to get away from the pure legal part now, it seems to me if you adopt the theory that mistakes were made, and a couple of you said let’s stop pointing fingers and go forward, if you adopt that theory and you have a master plan which now adheres to the requirements of your ordinance that you could be in a position to go forward with your site plan and let Planning Commission take that, direct it the way it should be directed and act on it as it should be…If you adopt the theory that there was an error in the master plan and that voids from the beginning this project, then I think you can take that theory also; I don’t know how defensible that is, but I think you can take that theory also. Somewhere in-between there may be something else; some other area that you can theorize on. I think you have to be aware of the current Suffolk case, which was a 2003 case – it’s not an old case, I think you have to be aware in that case the court was pretty liberal, I’m talking about the Supreme Court of Virginia now, was pretty liberal in saying that rights had vested.” He said he was not going into all the details of the case, but could summarize it if asked, but he thinks these are the things that must be considered.
Council Member Taylor said from listening to Town Attorney Arthur, the legal aspect is going to be a big component of this committee. He is trying to “envision, when so many of these bodies, whoever it is gets together on this committee and starts discussing, where’s it going to go?” Town Attorney Arthur said ,”I think the Mayor is going to have to decide, this is going to be , or I assume an ad-hoc committee of the Council, I assume is what you are going to appoint and they report back to the Council for a decision; the committee isn’t going to be able to make a decision as to what this Council does.” Mayor Crisman says he thinks this is important to keep in mind --- “regardless of what happens, it’s going to come back to us;” and Council Member Taylor agreed with this and added “should the Planning Commission be involved? Yes, I think. Should you (Town Attorney Arthur) be involved? There’s no doubt about it. Should that man (Ron Mislowsky) be involved? There’s no doubt about it. But, again, I think it has to happen quickly and again, we may get in there, I don’t see how the environment may change from what we’re talking about here amongst ourselves when you come down to it.”
Town Attorney Arthur commented, “I think it is significant to understand just from a pure legal standpoint, my representation. My client is the corporate body of this Council; not the Mayor, not Tim, not Richard, but this Council. My client in not the Planning Commission or the Board of Zoning Appeals or the Mayor, or Kevin, or Nora (Town Planner Amos); my client is this corporate body, the Council and if the Commission or the committee that is appointed would come back with a recommendation that the Council does not accept, it is my duty to represent the Council in their determination of what recommendation they will accept or not accept. It is not my duty to come back and try to convince the Council the committee was right or wrong.” He said this is significant to understand because the committee might come back with a recommendation that is different than what the full Council is going to vote on. Whatever is finally voted on will be his responsibility to attempt to uphold and defend.
Council Member Taylor said he doesn’t see how there will be another option coming from the committee now that the legal aspect has been spoken about. He does think the issue with the Planning Commission is they can’t move forward with the master plan approved by Council, but he still thinks there will be only two options to pick from when it comes back from committee. He asked if any other variations could come out of the committee.
Town Attorney Arthur said he is not sure, but did speak of another area of law that has happened in Strasburg many years ago. “There is an older body of law that says building permits or other governmental approvals which are in conflict with existing zoning ordinances are simply void ab initio (from the beginning) and have been held to confer no vested rights even though issued in good faith…so if zoning administrator makes an error, and someone relies on that, there have been cases which say that error, because it was wrong from the start, because it was wrong and someone relied on it, doesn’t make it right; that that decision is void from the beginning. The more recent law is that 2003 case of Suffolk which I just told you about. What the Supreme Court would do in this case, I don’t know --- I can tell you what has happened in the past.” He said this is not an easy decision for the Council because they are trying to balance everybody’s rights.
Council Member Taylor said he agrees with having people involved in the process, but he doesn’t think any more options will be come up with and he is not trying to alienate anybody.
Council Member Wilson questioned Town Attorney Arthur about the three criteria or the vested part he spoke of. If the Council accepts a master plan, does it have to go back to the Planning Commission for approval? Town Attorney Arthur said it would not for master plan approval, but it would go back to “say this is the accepted master plan and this complies with the requirements of the ordinance or you could adopt the theory that the master plan has to go back to the Planning Commission, like a start-over situation, and the Planning Commission says, ‘now we’ve seen the new master plan and it is in adherence with the ordinance and we are going to say that’s okay or not, and if it is okay, we are going to pass, or whether or not, we are going to pass that advisory on to you (Town Council)’, then you make a decision. That’s the start-over type situation.” Council Member Wilson said “that doesn’t sound like a timely closure to this thing.” Town Attorney Arthur said this is why he can tell what the law is and it is up to Council to decide what is significant and important. Council Member Wilson then doesn’t see why have a committee even though he, too, doesn’t want to exclude anybody. Town Attorney Arthur added “I think it’s defensible for you to adopt the master plan as your master plan that has been presented, let’s call it the third master plan for ease of identification; I think it is also defensible for you to send that back to the Planning Commission for you to get their opinion of it. Neither one of those is unreasonable, in my opinion. I am not the judge, however.” Council Member Taylor asked Town Attorney Arthur if he had seen the plan presented in April and Mr. Arthur said he had seen it, but had not examined it for propriety. He said it is not up to him to decide if it meets requirements as this is up to the Planner and Town Manager. Council Member Taylor asked if he had looked at it to see if it meets the requirements for a master plan and again said he had not, but had asked Town Manager Fauber if it does and he has said that it does. He corrected himself and said the one approved in April does not meet the requirements --- master plan 1 and 2 did not meet the requirements, but master plan 3, which Council had before them, “Kevin has informed me that it does meet the requirements of your master plan zoning requirements.”
Mayor Crisman acknowledged Planning Commission Chairman Leon Smith disagreement with the statement made by Town Attorney Arthur. Mayor Crisman asked Town Manager Fauber why the plan in April does not meet the requirements. Town Manager Fauber said the master plan “in accordance with 2-11.5 states ‘the plan shall show the locations of streets, lots, structures, open space, open space amenities, buffers, landscaping, screens, commercial uses, access points, and dimensions of proposed uses as provided in the design regulations sections.’ Neither one of these, neither the one approved by Planning Commission in January, 05 or the one approved by Town Council in April, 05 did not meet those requirements.” Some of the requirements were met in master plans 1 and 2, but not all of them. Council Member Taylor asked if the requirements were met in master plan 3 and Town Manager Fauber said “from what I can tell, it appears it shows the locations of the streets, the lots; it does not show the structures, but I’m not sure if any site plan, or obviously this is the first master plan, has ever shown exact structures….The third one was produced by the engineers in accordance with the development plan that the Council approved in April, 05; they were trying to define what they believed was the master plan that was approved in April of ’05 by showing the streets, the lots, and open space and so forth.” For clarification, Council Member Taylor asked if this was the one adopted by Council in April and Town Manager Fauber said it was not. Mayor Crisman said neither of the first two plans fulfilled the requirements, but the one approved by the Planning Commission was closer than what Council approved. Mayor Crisman clarified this by saying, “the one presented to Planning Commission for recommendation was closer to what is established in our Code as far as requirements than the one that was approved by Council; that’s my statement. Number 1 is closer to the requirements than number 2.” Town Attorney Arthur asked if this was a question and Mayor Crisman said it was. Mr. Arthur said it is difficult to say because there were substantial changes in number 2 from number 1 and that was some of the concerns the Planning Commission had. “Because those substantial changes were made, should that amended master plan been sent back to the Planning Commission for their thoughts and processes.” Town Manager Fauber said, “the plan that the Planning Commission recommended approval on in January was for 128 townhouses and 128 single family; when it got to Town Council, there was substantial amount of discussion concerning one of the main issues brought up by Council Member Taylor of the ratio of townhouses to single family. You as a Council made a recommendation to the Staff for the engineers to go back to the developers for more single family homes in the ratio of single family to townhouses. There was a discussion about the commercial being completed before all the residential was finished; run the County and Town model; and vegetation be phased in --- keep the present vegetation in place as long as possible. They came back and reduced the number of townhomes from 128 to 100 townhomes and 156 single family units.” Mayor Crisman said, “in essence that made it no longer in align with the master development plan.” Town Manager Fauber agreed and added “the one the Planning Commission recommended approval.” Mayor Crisman said, “So the error here, really, is at that point not sending it back to Planning Commission for recommendation.” Town Attorney Arthur said, “perhaps and perhaps not; your Code is vague and ambiguous on that and you at the time, maybe it was an error, but you at the time had undertaken that master plan and that dialogue with the engineers and said here’s what we want you to do and you were expressing different people’s concerns and thoughts about that. They went back and said they would do it and apparently that came forward to you. But, yes, that could be an error; I can still read that sentence two ways in your Code. It may say as a Council you can adopt major changes to the master plan; it may say that you can adopt major changes to the master plan using the same processes that are originally used when a master plan is sent forward.” Town Manager Fauber said that “sometime in my discussion I said that you approved it in April; you actually approved the rezoning in May, but you based your approval on the April master plan. Keep in mind, too, during this process between January of ’05 and May of ’05, you also had five or six other rezoning requests and all the proffers; you had a lot on your plate. I’m not trying to make excuses, but if you recall you had a Worksession where you tried to determine the rate of growth that we were trying to establish.”
Council Member Taylor, in conclusion said, “I don’t like to prolong it obviously; I’d like to get it done as quick as possible. I do not feel comfortable taking a master plan that does not meet our Code and passing it on; in other words I’d like to be able to have our Planning Commission work on something that’s legal. What I’m hearing is right now we don’t have either one, in other words we did not approve the current one they are looking at because there was another revision after the April one that we approved…The process says that we need to approve before they start looking at, so I think we need to approve whatever they are looking at which leads to the master plan leads to their working on the site plan, and obviously I never believe two wrongs make a right, I’d like for it to be a legal plan that they are dealing with.” Town Attorney Arthur said he is not sure this is what the Code says; “your Code says that your Planning Commission must approve or disapprove a site plan in accordance with the master plan. It says that your Planning Commission must give you a recommendation on the master plan once they have reviewed it; then it is questionable whether or not you have to send revisions of the master plan back to the Planning Commission. I can defend either one of those interpretations to that.” Council Member Taylor said he is saying, “I’m hearing three versions here --- January, April, and then after April another master plan --- was it a different on or not? Because the Code says we have to approve it, right?” Town Manager Fauber said the third one is the one they have in front of them currently. Mr. Taylor asked if the Council doesn’t have to approve this one. Town Attorney Arthur said not the Planning Commission, but the Council has to approve it. “What you have before you, I think, is an attempt to go back under the same concept that you approved in April and tweak it so that all the matters are met talked about in your Code. Kevin tells me that the concept is not different from your April plan as far as that goes, but that all the information is put on the master plan that you have, the revised master plan #3, which does bring it into compliance with your master plan requirements. Now, if that had been presented at the first, you might not have had any problems.” Council Member Taylor feels Council should look at master plan #3 and approve or disapprove it. Town Attorney Arthur said you need “to approve it; disapprove it; determine if you are going to send it back to the Planning Commission; or ask for something else.” Council Member Taylor wants to get down to just one plan that is being looked at and Town Manager Fauber said that would be very helpful to Staff.
Council Member Nicholson asked if master plan #3 “is approved contingent to the first two and I’m saying that Staff can say this is what you need to do to meet the Code. What I’m saying is can Staff go back and say this is what you need to do, instead of taking all this back through because we’re talking about a long time if we go back through Planning Commission and then back to us and then someplace else.” He feels there are a lot of master development plans and this is part of what the problem is. Town Attorney Arthur said , “what I understand Kevin to tell me is that master plan #3 --- I’m using 1 as the first one, 2 as the second one and 3 as the one you have --- master plan #3 meets the requirements of your Code for a master plan. If it were presented back a year ago, or whenever the master plan started, that would have been the only one you would have looked at, is what I’m seeing and hearing. If that’s true, if you accept that it meets the requirements of your Code based on what Staff is telling you, then I think you have to make a decision of whether or not 2-11.7 says you must send it back to the Planning Commission because it is a major revision to what the Planning Commission sent to you back in January.”
Council Member Himelright asked when the Planning Commission would be meeting again. The next meeting will be on April 13. Council Member Nicholson said he is saying that if this is approved, Town Staff can then work with the various issues such as the private streets. “Instead of sending this all back to the Planning Commission, I was under the impression we have a Planner and Staff to handle these ‘housecleaning’ issues.” Council Member Larrick asked “if we approve this master plan #3, does this give the Planning Commission what they need to approve a site plan; do I understand that correctly?” Town Attorney Arthur said yes, he believes this gives them what they need to approve a site plan, but they have a “responsibility to review the site plan and make sure it meets site plan requirements, not master plan requirements, site plan requirements which then gets into these question that came up at some of their meetings about streets and some of the things that Mr. Mislowsky addressed.” Council Member Wilson and Larrick didn’t think this seemed too difficult --- why have a committee if #3 meets the requirements. Council Member Taylor said he thinks this sounds too simple and again asked if #3 meets all the requirements. Town Attorney Arthur said the only thing Town Manager Fauber had said was not included was the actual structures shown on it --- it shows the layout of where they are going to be, but it doesn’t show what the structures look like. Council Member Taylor asked if this could be looked at in one Planning Commission meeting and Town Attorney Arthur said he would take a “long, hard look at this in your ordinance; do you really want to see what those structures are going to look like on your master plan; maybe you do.” Council Member Taylor asked how long it would take if it went back to the Planning Commission for the master plan. (No answer was given).
Mayor Crisman said, “according to our Code, the master development plan is attached to the proffer to rezone it so how in the world do we take it back and attach it to anything; rezoning is already over.” Town Attorney Arthur thinks Section 2-11.7 allows you to do this because of the variations, revisions, and additions of land; “it’s not cast in stone one that’s done. It speaks about major revisions to an approved and adopted master plan, or the addition of land to a planned development through these procedures set forth in the ordinance. It contemplates that you can add changes to it. I think one thing the Planning Commission is telling you is there was a change in concept in the plan #2 that you passed, therefore they should have had a chance to look at that and give you a recommendation on that change in concept; that was not done. I think they’re saying, the one we passed on to you first, when this was all so fresh with everybody, did not meet the requirements of the statute….But, then the master plan was taken and changed by major revisions and it was changed in concept – now the engineers might argue that it wasn’t changed in concept, it changed in number of houses and that sort of thing and maybe that’s true – I think the Planning Commission is saying it changed in concept therefore we should have taken another look at it before we sent it back to you with a recommendation. Even with that, you still have to have a master plan that meets the requirements of your ordinances; that’s what Kevin is telling me you have before you now; he’s telling me that it doesn’t change the concept of master plan #2 and then, if you approve that either by committee or here with the recommendation of committee and you approve it, then the Planning Commission has to wrestle with site plan.” Again, Council Member Taylor asked if master plan #3 meets the requirements and asked Town Attorney Arthur if he had looked at it as well. Town Attorney Arthur said, “I’m not an engineer, I don’t know how to read those things; I know what the ordinance says. I can tell Kevin that it needs to have open space; it needs to have open space amenities shown; buffers, etc., etc., etc. And when we went down through those he said yes, the only thing it doesn’t show is structures and I’m not exactly sure what that means; if it means pictures of structures or not. It has layouts of where the houses are going to be.”
Council Member Taylor asked Mayor Crisman when he decided to form the committee if he was expecting anything further than was happening or occuring now, at this meeting. Mayor Crisman said “they are pretty much following what I thought they were going to follow.”
Town Manager Fauber said he had two questions. “One is, what master plan are we going to work under. Once we can determine that, then the second question is going to be the site plan approval process. We know there is some interpretation issues/problems with that --- private streets, parking areas --- so that is where you may have to get your special committee involved.” Town Attorney Arthur then asked, “was the whole process so egregious that you have to go back and tell the developer he has to start over.”
Town Manager Himelright asked, “Kevin, in you opinion, is the first step in this getting the master plan approval?” Town Manager Fauber said this is the first item that has to be resolved.
Council Member Himelright moved “that between now and the next scheduled Council meeting that the Planning Commission set a special meeting, that we present this site (master) plan to them; they come back to us with a recommendation of approval or disapproval of this site plan --- corrected to master plan --- and that at the May Council meeting we either approve or disapprove this master plan. (Council Member Himelright changed the month to April Council meeting as this will be a special meeting). He summarized by saying he would like the Planning Commission to have a special meeting between now and the April Council meeting and give us their thoughts. I would like to say I’ve heard statements that as far as authority and all this, and as Councilman Taylor stated a couple of times tonight, this decision is ours; we get recommendations, but this decision lies in our laps and no one else’s. That’s my motion.” Second by Council Member Larrick.
Mayor Crisman stated “I have a motion and second that we submit this 3rd master development plan back to Planning Commission
Discussion:
The motion carried with one nay from Council Member Nicholson.
Mayor Crisman asked if there were other items concerning Cedar Valley. He asked if it were necessary to discuss the E & S item. Council Member Taylor said this will be reviewed in the Ordinance Committee. He has talked to Mr. Bois at the County about options in the future, but from talking to Town Manager Fauber and Mr. Hepner of the Shenandoah County E & S Department, everything is legal there.
Council Member Nicholson asked if there would still be a committee to look at the ordinances. Mayor Crisman said the Ordinance Committee will handle those. Council Member Taylor said he would like Town Attorney Arthur to attend the meetings when they begin to look at all of these and would also like Staff to be involved. Would like to know exactly what conflicts and issues need to be addressed. He concluded by saying the biggest tragedy of this “is if we don’t learn anything from this…We want to avoid this from happening again; mistakes were made and I admit when it comes down to it, I should have looked at it more closely.” He thinks the memos from the Mayor are going to assist everybody to make sure this doesn’t happen again. “We all want to go forward. I think it is painful, but I think we’ve all learned a lot from this; I know I have. I think that is the key as we go forward; to make sure that we “cross our ‘t’s’ and dot our ‘i’s’ as you (Mayor Crisman) said and we avoid this from happening again.”
Town Attorney Arthur said he agrees with Council Member Taylor, but “what you need to be careful of though is that, I think you need to address small steps at a time and try to correct where we see there are deficiencies in the ordinances and where there are ambiguities and conflicts in the ordinances and fix those. If you try to look at this whole body of ordinances and try to do it, I think you’re just going to make it worse. Don’t forget that every municipality, every legislative body, including the State of Virginia and the federal government, has all kinds of ambiguities and holes in their laws and as they find them, they tweak them and fix them. That is what you are doing; you’re not unusual in that. There is going to be plenty that we aren’t going to know about until something comes up.” Council Member Taylor said at the ordinance meeting he wants to first address those that concern this specific situation and look at those first.
Being no further business, the meeting adjourned at 8:43.