MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL FOR THE TOWN OF STRASBURG, HELD ON TUESDAY, JULY 11, 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 Wallace.
ROLL Called with the following members present: Mayor Tim Crisman, Council Members Le Vine, Mauck, Nicholson, Rinker, Terndrup, and Wallace. Absent: Council Members Taylor (family vacation) and Whittle (company business trip).
Minutes of the June 14, 2006 Regular Town Council meeting were approved as presented.
Mayor Crisman welcomed all in attendance and said all petitions and communications had been directed toward the appropriate committees. He also welcomed all new Council Members who were attending their first meeting. He explained Judge Hupp would be swearing in the new members at a later date.
Visitors/Guests:
Citizen Comments: Mayor Crisman announced that at all Council meetings a bell would be rung when speakers had spoken for two minutes and 45 seconds as a warning to close comments; the bell would again be rung at three minutes. He also reminded all in the audience to remain quiet while others are speaking.
George Crossman, 179 Stony Pointe Way, Strasburg, VA: Mr. Crossman said he is a fairly new resident as he has just lived here for about a year. He said one of the main areas of Town he enjoys using is the Town Park --- he takes his dog on walks and cleans up after him. He said that while walking, he also cleans up trash. He realizes the Town cleans the Park on a regular basis, but litter is still a problem and he suggested the use of cameras (or fake cameras) to deter littering. By using cameras, “law enforcement would have a record of people who are littering, and I mean not just kids, I mean families, as well.” This could also help with speeding in the park and could help control bullying, if this is a problem. He added that he came up with this idea from visits to the County dumpsters which do have cameras installed.
Mayor Crisman apologized for the littering as he had planned to work with a youth on this problem, but other events had kept him from the litter problem. He said he promises he will do better on this project.
Kevin Rose, attorney for Madison Development, LLC: Mr. Rose said he understands there are some petitions concerning the rezoning of Madison Development, LLC – the Island Farm. He wants all to know Madison Development, LLC “has considerable investment in the island property. It has been ongoing since 2002 and it continues to be ongoing. We believe there are vested rights in this rezoning.” It would be very costly to try to rezone it, both for Madison Development and the Town. “Given his (the applicant) substantial investment, he is going to need to take what action is necessary to try to protect his rights, what his vested rights are. We just want to remind the Town of that.”
Greg Nash, 125 W. North Street, Strasburg, VA: He said he had spoken at the Council meeting on April 11 where he spoke from his heart and soul and at the guidance of God. He cares about this Town. He wonders if a deaf ear was turned to the recommendation of the Planning Commission. “The damage is done. May we learn from this? Yes, so it may not happen no more.” He thinks the Council could benefit from a special advisor. He asked that the Council move to protect the Charter from disappearing into the County’s hands. “For how many lawsuits could we pay before bankruptcy? Lawyer intimidation, engineer conflict goes unsaid. Thank you.”
Kim Bishop, 728 Crystal Lane, Strasburg, VA: “Honor; Duty; Responsibility! What do these words mean? Honor is having a keen sense of ethical conduct. Duty is doing your job. Responsibility is a moral, legal or mental accountability to something. Our country was founded on these principles and our founding fathers made it clear that our kind of government, a government based on laws, can only exist with ethical, honorable people doing their duty with a great understanding of their responsibility. Sometimes that means putting yourself on the line for what is right. Sometimes you have to say “bring it on!”
The law is the law. If it’s not followed, it’s meaningless. The only time I’ve seen people really concerned with the law around here is when the word “law-suit” is brought up. I’m tired of it. The personal agendas in this room make me sick. I know people think I have a personal agenda…that I’m out to get someone or something, but that’s just not so. I feel honor and duty bound to not shirk my responsibility as a citizen, so I speak out and try to fight for what’s right, within the law. Look back at my statements. I have argued before this Council for a long time against rezonings and lost almost every time. When have I come back and tried to change what’s been done? Never! Not once. I’ve been disgusted with the abuse and misuse of the Comprehensive Plan, sure, and I’ve stated that point many times, but I’ve always accepted the loss and moved on. After the Island Farm rezoning, I was at home musing over the pointlessness of the whole process when I learned that Mr. Boyd or his attorneys or the Town, I don’t know who, didn’t file some kind of proper papers. Now, that is a possible breech of the law, and as such should be amended before this process continues. It’s simple and clear. Of course I’ve learned that the law is only as good as the person who spins it the best. It’s been said that if the citizens had won in the Island Farm rezoning that this would never have been brought up…and perhaps they are right, but don’t be fooled: Mr. Boyd did not pay good money for a court reporter to sit on the last two Council meetings for posterity. You can bet the Council would be dealing with a completely different problem. So you need to greet reality and realize this was going to happen either way. At this point, in my opinion, the Island Farm is going to have houses on it. What’s done will probably stay done, no matter what. That was my concern. Now, my concern is about the law being followed. If Mr. Boyd gets away with not following proper procedure --- whether through his negligence or the Town’s --- why not the next guy.
To me, it is the duty and responsibility of the Council to do the honorable and right thing. Quit spinning the law. You guys need to send the appeal to see if this procedural error violates the Virginia Code. Will the citizens do it? Yes, they’ll try, but then you’ll
look like a bunch of cowardly, honor-less, irresponsible people; and it would be sad to start a new Council, that had so much hope instilled in it, this way. Please remember honor, duty, and responsibility. Thank you.”
Warren Peirott, 429 Dickerson Lane, Strasburg, VA: Mr. Peirott said he was here to make sure the work of the previous Council is honored. He heard there may be some action taken to overturn the decision on the Island Farm. He feels this would “pretty much be a slap in the face to the people who sat in your chairs for the time that they did and some of them, for what I understood, was for over 10 years.” This was thought through and voted to be rezoned. There was much talk about a FEMA flood plain analysis and applications are in and this information should be available soon. The proffers state the 500 year flood plain will be adhered to and this will be set by the FEMA flood maps. He doesn’t see where there was a problem with any procedures. If there was a procedural problem, he doesn’t see how it happened. He wants the Council to keep the Island Farm for the children as the fields are very important to the youth. He does want to make sure the Island is safe and then work with builder to make it happen. They have already enrolled 130 children in midget football for the fall season and still have an additional registration night. The fields are needed.
Leslie Meaux, 184 S. Massanutten Street, Strasburg, VA: “The Island Farm, Cedar Valley, the Morris subdivision --- what do those three developments have in common? Well, what they have in common is that there were procedural missteps in all three. And, in all three cases, we have ended up with a bad situation. The Morris subdivision, we gave away $72,000 to a public official in exchange for a road to be built through that parcel of land that will probably never be built. In addition, we put homes on a private drive, which according to our own ordinances is not allowed. And, we put homes down there that are not in keeping with our historic character of that part of our Town; it’s an eyesore. Cedar Valley somehow what the Planning Commission approved suddenly was a different plan when it got to the Town Council. And every time I drive in here from Northern Virginia, I have to see that eyesore coming into our beautiful Town. And, now the Island Farm. Again, we hear procedural missteps, notifications were not made properly per the State Code of Virginia and we ended up with a bad decision of putting people in a flood plain --- future residents of Strasburg, down in a flood plain. Would anybody in here buy down there? I bet not. So, we’ve ended up, because of procedural missteps, time after time with bad decisions. Bad process makes for bad outcomes and that’s what we have here. Now, as a private citizen and a tax payer of Strasburg, I have to tell you, I’m tired of this. I expect better, I deserve better, as does every other citizen in this Town. We deserve better. Now, if we supposedly have professional Town management, I would expect this would not be happening, but it’s happening time and time again. Strike three and you’re out. You take responsibility for this or we citizens will. And, it’s not just us ‘blow-ins’ that are angry. I’ve had more support from very long term Strasburgians on this issue. So I am here to ask you to please, as our leadership, as our standard bearer of how to do things, please redress this properly. Take responsibility; otherwise, unfortunately there are others of us waiting to do the right thing. Thank you.”
James Stout, 1626 Star Tannery Road, Star Tannery, VA: “I don’t see where this should be an issue. The Council before you voted for it; we all know we need the fields. I know everybody back there snickers when we talk about the fields and they say we’re using the kids to get the fields, but we need the fields. Everybody says, well it’s a flood plain. Has anybody ever established that it is a flood plain? Has anybody said at this point, on the Island Farm, this is where the 500 year flood plain is? I’ve heard people say they’ve seen it under water; and then I’ve heard people say, ‘well, I’ve never seen it under water. So whose word do we take? It has been approved. Let it go through the process. You are going to get a FEMA study that will establish the flood plain. He’s agreed not to build below the 500 year flood plain so why can’t we work together to make this happen? The Council before you approved other projects so are we going to go back on every project that’s been approved and say ‘hey, no, we don’t allow it.’ What are you going to say to the people that get elected after you all? Are they going to come back and say, ‘well, we don’t like what they did so let’s see if we can have it disapproved. My point is, if you start this where does it end? Where do you say, ‘hey, we’re going to draw the line; we can’t do this anymore. My feeling is, the Council before you voted it in and it should stay the way it is. Thank you.”
Joyce Gary, 744 Crystal Lane, Strasburg, VA: “On June 14, a decision to approve the rezoning request for Island Farm was made. Since that time, it has been discovered that procedural errors occurred which violate Virginia Code. It is my understanding that you will be considering the question of whether the Council should appeal the decision based on this procedural error or violation of State Code. Town Staff has acknowledged the error – we know it happened; that’s not the issue. It’s about the process and the perception. It is not an appeal of the decision. It is not even about the decision. It is about the process and the perception by the Town’s citizens of their Council. This is important! A vote to appeal would simply send the matter to the courts to decide if we should re-start the process and, if that is the decision, then when the process is completed correctly in compliance with the law, the decision on the rezoning will be made again, and that final decision may not change.
But what can change is the perception that you are a fair and honorable body.
It sounds so technical, so mundane, almost petty. What it represents, however, is significant and profound. It represents an opportunity – an opportunity for you to show that you take seriously your obligation; an opportunity for you to demonstrate that you will be watchful, conscientious, and trustworthy.
This isn’t the only example of improper or sloppy procedures. The process wasn’t followed correctly with Cedar Valley either, but this time you have a chance to correct the problem and to put people on notice that they must do their jobs correctly and within the confines of the laws and codes by which we are governed. People voted for a change from the “same-old, same-old.” Show them that they were not deceived. Show me.
I am amazed that anyone on this Council would not think it is their duty, their obligation to right a wrong, to correct the Town’s error. To think that it is the responsibility of the citizens of the Town to take action when the Council could, is inconceivable to me. It is so political. It is so self-serving. It is an absolute betrayal.
Look at these people --- they want to trust, they need to trust. I urge you to give them that chance; show them that you can do the right thing even when it’s hard.
I hope you will vote to appeal. I can’t imagine the thought process that would go into justifying any other decision on your part. It is the honorable thing to do. And, if you are thinking in terms of politics, I would assure you that it is also the right thing to do, because in voting it down, or manipulating it so that there is not A vote, will speak legions about your own personal agendas and it will betray the trust of the people who voted you in. And trust betrayed is a painful and dangerous thing to deal with, and seeks it’s own type of healing. Anger and frustration are already out there. Don’t make it worse; don’t add the insult of betrayal to the hurts already thrust upon this Town.”
Richard Orndorff: “First of all, I come to say congratulations and Godspeed and good luck to those of you who are sitting here for the first time this evening. But, I also come with a very heavy heart because I was made aware of some very sad news for the Town of Strasburg earlier today and that is the loss of our Town Attorney.” He said Mr. Arthur served the Town longer than he can remember and he served with him for 13 years, both as a Council Member and Mayor. He said he couldn’t put into words “what an honorable, decent, and fine human being that Doug Arthur is.” He feels Mr. Arthur “epitomizes the term Virginia Gentleman.” Mr. Arthur has served the Town better than anyone he knows. “It wasn’t for personal gain; it was for the community that Doug loves and raised his family in and continues to work and live here.” He does have other business interests, but every time that there was an issue concerning this that came before the Council, Mr. Arthur would go to the Town Manager or Mayor to see if they wanted some one else to serve them on a particular issue. “There is no one that knows Town Code and Charter better than Doug Arthur and there is no one that knows Strasburg better than Doug Arthur.” He implored the Council to look long and hard to find someone to replace Town Attorney Arthur. “I come before you because Doug Arthur, as I say, is one of the most honorable and decent human beings that I know and I’m proud to call him my friend. Thank you."
Town Officer’s Reports:
Town Attorney Arthur: Mr. Arthur said he has served the Town for 36 years and it has been a labor of love as he has enjoyed being the Town Attorney. He has worked with eight Mayors and Council People too numerous to mention. He now wants to be able to devote more time to his practice and have more time for his love of music. He will be glad to serve the Town anyway he can during the transition period.
Town Attorney Arthur said two matters will be taken up in Executive Session; one on personnel matters and the other on the Island Farm. It is his proposal to take Council into the closed session to discuss personnel first and discuss this matter with them and then to take Council into closed session to discuss the Island Farm matter of which he has recused himself from any discussion on. He will have Council contact Roger Wiley, an attorney from Richmond, who will be representing the Town on that matter.
Town Manager Fauber: Mr. Fauber said he had given all Council Members a report on the Freedom of Information Act. He received an email from VML which stated that elected officials are obligated to read these acts and become familiar with them. Each Council Member will be receiving a booklet on these in the near future.
The Utilities Committee, along with the remainder of Council was reminded of the meeting scheduled for July 20 with DEQ, Friends of the North Fork, and Town Officials to go over permitting issues with the Waste Water Plant Expansion Project. This meeting came as a result of the Friends of the North Fork.
Yesterday, he and Director of Finance Mullins met with Hometown Strasburg, Inc. and other officials working on the “pocket park” project. There was a request in the preliminary project from Hometown Strasburg, Inc. that any additional funds from the Beautification Committee be turned over to the Hometown group for this project. Director of Finance Mullins has checked on this and there is approximately $1,400 of remaining funds. It is Staff’s recommendation, but it takes a vote of Council, to re-appropriate the remaining funds from the Beautification Committee to Hometown Strasburg, Inc. For clarification, Mayor Crisman asked if this was just the remaining funds and Town Manager Fauber said that is what this re-appropriation is for; there is $5,100 allocated in the FY2006-2007 Budget for this project. Council Member Mauck said the remaining funds had been slated for landscaping for that project and she would recommend the money be given to Hometown. Mayor Crisman said Hometown does want to move along with the project and currently we are only talking about re-appropriating the remaining $1,400. He said the $5,100 was also allocated to the Beautification Committee budget, but Town Manager Fauber feels the project needs to move forward more before re-appropriating these funds to Hometown Strasburg, Inc.
Council Member Mauck moved to re-appropriate the ~$1,400 for the pocket park and give it to Hometown Strasburg, Inc; second by Council Member Wallace.
Discussion: Council Member Le Vine said he is a member of the Hometown group and questioned if it was proper for him to vote on the issue. Mayor Crisman said this would not be a problem and that technically all were members as citizens of Strasburg.
The motion passed unanimously by a roll Passed unanimously on roll call vote with the following results:
Council Member Le Vine yes
Council Member Mauck yes
Council Member Nicholson yes
Council Member Rinker yes
Council Member Terndrup yes
Council Member Wallace yes
Town Manager Fauber asked that all Members look at the report he included in the Council Packet regarding current projects.
Director of Finance Mullins: Currently, end of year processing is being worked on and getting everything set for the new budget.
Director of Public Utilities Tewalt: Met with engineers from R. Stuart Royer today and have started the footprint design of the building on the Water Plant project. They are looking at the types of screening and structures that will be used at the river. There is still an issue with the road going into the plant and they are working on resolving this with the Shenandoah County School Board. Mr. Tewalt said he will not be able to be at the Utilities Committee meeting on July 20 and asked to meet with Council Member Nicholson prior to this. He added he has enjoyed working with Mr. Arthur.
Director of Public Works Rhodes: The Stickley-Borum Street project is about 85% complete and the Town Crew is within a few days of finishing the brick sidewalks on Queen Street. They have started doing some re-paving in Town. Hydrant flushing will be taking place in the near future and notice of this will be in the newspaper and neighborhoods will be notified.
Chief of Police Robinson: The Police Department had a DUI checkpoint a few weeks ago and he is proud to report they did not have anyone come through who was intoxicated. He asked that if anyone sees an intoxicated driver, please report it to 911; they do want to get drunk drivers off the streets. Last month the department had 830 calls and made 144 adult arrests.
Town Planner Amos: No report from the Planning Commission. Planner Amos did give Council Member Taylor’s Ordinance Committee report. The committee met and went over the final amendments to the zoning and subdivision ordinances. There are a couple of changes that need to be made, but these will be brought up at a Public Hearing in August and then brought before Council for approval and review.
On July 25, Sarah Holber from the Valley Conservation Council will speak to Town Officials, Town Council members, and Planning Commission members at 6:30 p.m. She will be speaking on better models of development and low impact development. The Ordinance Committee had requested that someone come and speak on the LID (low impact development) practices for erosion and sediment control.
Standing Committee Reports:
Public Safety: No report.
Personnel Committee: No report.
Public Utilities: Council Member Nicholson said the committee had met with Mr. Holtzman on possible prospects in the Golden Triangle area, but it is just in the discussion phase. Non-potable water project is still waiting on Allegheny Power. Director of Public Utilities Tewalt said the pole has been set by Allegheny. There are still a few last details to take care of.
Recreational Advisory Committee/4th of July: Council Member Wallace read a thank you letter from Chairman of the July 4th Celebration, Taralyn Nicholson, thanking all for their help in making the event so successful. She mentioned the Town Office Staff, the Public Works Department, the Strasburg Police Department, Fred and Marie Cheshire, Sally Yates, Town Manager Fauber, Pool Manager Debbie Whittle, and pool staff. Mrs. Nicholson also thanked everyone who had helped with this celebration in past years.
Mayor Crisman said the event gets better and better each year! He said many people thanked him for the great time they had and he said he was the wrong person to thank. But, seeing all the people leaving and thanking him for this fun and free event was very uplifting for him. He said he also thought about the Town Staff who had to arrive hours before the event and then had to stay late for clean-up. He just wanted all to know how much it was appreciated.
Finance Committee: No report.
Ordinance Committee: Report given by Planner Amos.
Building and Grounds Committee: No Report.
Streets Committee: No Report.
Special Committee Reports:
Shenandoah Telephone Advisory: No Report.
Strasburg Heritage Society: No Report.
Chamber of Commerce: No Report.
Hometown Strasburg, Inc.: Mayor Crisman said an update had been given during the discussion on the re-appropriation of funds.
Unfinished or Old Business:
New Business: Mayor Crisman said a new Vice Mayor needs to be appointed. He said he had spoken to Council Member Taylor who said he would serve in this capacity if nominated and elected.
Council Member Le Vine nominated Tim Taylor; second by Council Member Wallace. Mayor Crisman asked for further nominations and being none,
Council Member Wallace moved to close nominations; second by Council Member Le Vine. The motion passed unanimously.
Mayor Crisman said by acclamation, Council Member Taylor became the new vice mayor.
Council Member Le Vine stated “the world looks different from up here than it did a month ago when I was sitting out there. It does make a difference. I wanted to thank the Town for giving me the honor of being a Councilman and I hope when I leave the Council, the Town’s a little bit better for my serving on the Council. Thank you all.”
Council Member Le Vine said the Town has gotten a lot more complicated than it was in the past and because of that, he feels there needs to be more structure in the meeting. He moved to formally adopt Robert’s Rules of Orders for the procedures of the Council meetings with the caveat that anytime that the Town Code comes in conflict or differs from Robert’s Rules, the Town Code takes precedence; second by Council Member Rinker.
Discussion:
Mayor Crisman said the only question he has to this is there are several different versions of Robert’s Rules of Order and could it be signified which version should be used. The version Mayor Crisman gave to new Council Members was Robert’s Rules of Orders Newly Revised 10th Edition, published in 2000. Town Attorney Arthur said the Town Charter and Code does give the Council the authority to adopt rules of order to use.
The motion was amended to adopt Robert’s Rules Newly Revised 10th Edition, published in 2000. Council Member Rinker moved to approve the amended motion; second by Council Member Mauck. The motion passed unanimously.
The original motion then passed unanimously.
Committee Meeting Dates as Follows: The committees all have new members and/or chairmen. The committee members are listed below the committee with the chairman being the first name listed.
COMMITTEE DATE TIME
Public Safety Committee
Taylor, Whittle, Le Ving
Personnel Committee Wednesday, July 26, 2006 7:30 p.m.
Whittle, Nicholson, Terndrup
Utilities Committee Thursday, July 20, 2006 7:00 p.m. Nicholson, Le Vine, Mauck
Recreation Committee Tuesday, July 25, 2006 8:00 p.m. Mauck, Taylor, Whittle
Finance Committee TBA (would like to meet the 3rd Wed. of each month) Le Vine, Wallace, Rinker
Ordinance Committee Tuesday, July 18, 2006 7 p.m.
Terndrup, Rinker, Taylor
Streets Committee TBA
Rinker, Terndrup, Wallace
Buildings and Grounds Committee TBA
Wallace, Mauck,
Planner Amos announced there are several openings for citizens on Town committees and people are asked to submit a letter of qualification by July 25th for these vacancies. The openings will be published in the newspaper and displayed on the Town’s website.
Executive Session:
Council Member Nicholson said, “I’m not going to be a party to these two executive sessions because I don’t feel the need for them.” Council Member Wallace said, “Mr. Mayor, I’m not going to be a party to it either; I don’t feel there is a need for an executive session.” Both Council Members left the Council Chambers, leaving only four remaining Council Members. Town Attorney Arthur referred to the Town Code and Robert’s Rules of Orders to see if, because there had been a quorum at the beginning of the meeting, this would still constitute a quorum even though the members had left. Due to the complexity of this matter and because it was a procedural matter about if Council can go into Executive Session, Mayor Crisman called for a recess so Town Attorney Arthur could consult with the legal counsel that was to discuss the issues with the Council during closed session; Mr. Wiley is an expert on municipal matters.
Town Attorney Arthur returned from recess and said he had consulted with Mr. Roger Wiley, a municipal attorney in Richmond, who was consulted and asked to be on call tonight to discuss with you in executive session the issue of the Island Farm. Mr. Arthur had discussed with Mr. Wiley the procedural concerns he had and they reviewed the Town Code, Charter, and Robert’s Rules of Order. Mr. Wiley is willing to do a call in open meeting where Council Members can ask him questions; or he is willing to talk to Council Members, 2x2 so as not to violate the Freedom of Information Act. Mr. Arthur felt is was better to do this in open meeting and only Council Members could ask questions --- no questions from the public. Mayor Crisman asked if he was to discuss only procedural matters or the Island Farm, too. Mr. Arthur said it was only to discuss procedural matters. Mr. Arthur said Mr. Wiley felt that any substantive action would be highly dangerous at this point and that includes going into executive session.
Telephone Conference with Mr. Roger Wiley, Town Attorney Arthur, Mayor Crisman, and Council Members:
Mr. Arthur explained to Mr. Wiley who was in attendance and said he had briefly explained the situation of two members of Council leaving the meeting.
Mr. Arthur: Our Charter basically says that a quorum shall consist of five members, not including the Mayor. So I will stop and let you take it from there.
Mr. Wiley: Just a word for a moment here about where we are procedurally because of a lack of a quorum. When Doug and I discussed that, my conclusion was that you could not properly convene in closed session at this point because that’s an action requiring a quorum just like any other vote that you might take. Given the fact that the Charter says that these folks – not the Charter, but a Town Code section says that once the meeting was convened, these people were to seek permission before they left, I don’t believe that their voluntary absence should make it impossible for you to continue discussion. It is clear you can’t vote to take any action at this point without a quorum, but I don’t think that means that you immediately have to simply go home.
Mr. Arthur: Roger, would you like to entertain questions then from Council at this point.
Mr. Wiley: With respect to the larger issue, or the substantive issue that we were planning to talk about in closed session, let me just say what my understanding is and if any member of the Council thinks that is not correct … My understanding of the situation, you had a rezoning application that was advertised properly in the newspaper and notices were properly mailed to the various landowners whom the State Code required be notified by mail. But, one of the two County governments that State Code said should be notified, was in fact, not notified. It is also my understanding that the County Administrator of that County said that he was, never-the-less, aware of the rezoning actions being pending just through publicity in the newspaper. You can ask me whatever questions you’d like at this point, but I reserve the right to say I think that’s something I’m not, or that advice or conclusion not prepared to offer you in a public session. With that maybe I’ll just let you ask whatever questions you want to ask and if I have trouble hearing what we may do is let the Mayor repeat the questions.
Council Member Rinker: I think what you said there is in part true; I think there are other extenuating circumstances that have been discovered about notification and possible boundaries of the property as shown that need to be discussed in closed session, that may affect the outcome of this decision. I think at this time it is something, I know myself I’m not prepared to discuss in open session and I think we need to have that. My main question is because these two folks left here this evening, does that negate any time tables that were due in the next couple of days. Let’s say, for instance, there was a 30 day notification of reversal, of potential reversal, of this decision; that 30 days will click off on Thursday evening. Because these two folks left here this evening, does that by any chance negate that 30 days and what does that do to that time table?
Mr. Wiley: I would be reluctant to say that their departure from this meeting would affect any deadlines set by the State’s statutes. Those deadlines, I’m assuming you’re referring to the provisions in the notice statute that says that anybody who wishes to challenge an ordinance based on inadequate notice has to do so within 30 days.
Council Member Rinker: That is correct.
Mr. Wiley: That, of course, is not speaking specifically of the Town Council challenging it. In fact, I think the statutory assumption would be Council wouldn’t generally be in the position wanting to challenge its own ordinance. That’s a deadline that’s imposed on any affected party who might be thinking it might be challenged.
Council Member Le Vine: For your information, three of the four Council Members here are new; this is our first Council meeting so it’s a nice introduction.
Mr. Wiley: Welcome to democracy in action.
Council Member Le Vine: It’s different on this side of the table. If I understand what you’re saying correctly, that we could discuss this with you, but there is nothing we can actually do tonight without a quorum; that is, we can talk without putting you in the position of giving us an opinion, I understand that, but we cannot take any action, make any decision which is binding on this Town without another Council person here tonight now --- is that correct?
Mr. Wiley: That is correct.
Council Member Le Vine: So in some sense this discussion is an academic discussion because it’s educational, and that’s good to understand the consequences, but there is nothing we can do tonight unless one of these two Council people returns --- do I understand you correctly?
Mr. Wiley: I believe that is correct, yes --- that you cannot take any official action on behalf of the Town or acting as the Town Council in the absence of a quorum.
Council Member Le Vine: So this is purely a discussion unless one of the Council people returns, there’s nothing we can do at the end except adjourn, which is probably not a substantive thing, we can probably do that, I assume. But, I also assume for the record, this does not invalidate anything we did before they left.
Mr. Wiley: No, that’s correct. Robert’s Rules makes that pretty clear. It doesn’t call into question any previous actions you may have taken tonight.
Council Member Mauck: My question is, having left the Council meeting without permission from the Mayor, what is the reaction to that; what are the following actions?
Mr. Wiley: Well, as a practical matter, I’m not sure there is a whole lot you can do about it. I don’t know if the Mayor has any power to order out a Town Police Officer to go bring them back.
Council Member Le Vine: Tom DeLay did it in Texas.
Mr. Wiley: Tom DeLay did it in Texas; I already suggested…
Council Member Le Vine: I’m being fastidious.
Mr. Wiley: I don’t even know enough about your Town to know if you have a police department, do you?
Mayor Crisman: This is the Mayor, I don’t know you personally, sir, but we have the damn finest police department anywhere around this area.
Mr. Wiley: As an attorney in Charlottesville, we did in fact have a police officer present at Council meetings who acted as the Sergeant-of-Arms. We never had to send him out to bring anybody in, but we did on one or two occasions, in those 15 years, have to ask him to eject somebody from the meeting. I guess in theory, anyway, if you have a sergeant-at-arms, you could direct him to do either of those things.
Council Member Terndrup: Since it would appear that we cannot act, a citizen could present this petition to the Circuit Court tomorrow; is that correct?
Mr. Wiley: There is nothing about the Council’s inability to act that would affect anybody else’s rights in this and yeah, assuming it is somebody that had what the courts would call a standing to bring the suit, that is some legitimate interest in the outcome, then, yes, they could file a suit to challenge the validity of the previous zoning action.
Council Member Terndrup: So a petition of citizens, a petition signed by a number of residents of Strasburg, could they file this petition in court on their own?
Mr. Wiley: We are getting something where you’re sort of asking me to advise somebody other than the Town about what their rights may be. All I would state is that in general, under Virginia law, you have to have something more than just an academic interest in the outcome of a proceeding to file a suit over it.
Council Member Le Vine: Let me try to interpret what Mr. Terndrup is asking to see if I understood what you said. What I understood you to say is that any party that has legal standing, and that’s defined by the Court has an interest in this, could file with the Circuit Court, which is the right place to do this, an appeal asking the Court in intervene in this and make a decision on this rezoning, the procedure of that, independent of whether the Council acts tonight --- that our actions have nothing to do with the ability of citizens to act on their own.
Mr. Wiley: That is correct.
Council Member Le Vine: That is what you are saying; they can do this on their own.
Mr. Wiley: Or somebody challenges this zoning act.
Council Member Le Vine: That’s correct. Our inability to act does not invalidate in any way anybody else’s right or ability to act on their own.
Mr. Wiley: Exactly.
Council Member Le Vine: As long as they do it in the proper way and have legal standing and whatever the Courts require. Is that correct?
Mr. Wiley: Right.
Council Member Terndrup: Let me ask you one other thing --- would either way, whether the Council or a private citizen filed this appeal, what that have any greater or less weight in the Court?
Mr. Wiley: No, assuming you had a plaintiff who had standing to challenge the actions, the presence or absence of the Town Council would make no difference.
Council Member Terndrup: Thank you.
Mr. Arthur: Go ahead Tim, did you have something?
Mayor Crisman: Yeah, but it was on a separate matter, on things that happened here this evening that I’d like to ask him. I’m going to re-address the question that you had earlier about what I can do personally with the issue of the two Council Members that left. Our Code in many ways gives the Mayor a lot of say without a whole lot of ask and I hate to put it to you in that particular way, but that’s the way I feel.
Mr. Wiley: That’s not unusual.
Mayor Crisman: Is there anything that I can do or any recourse that I can take other than censoring them or something along those lines?
Mr. Wiley: Without reading your Code more carefully, I’d be reluctant to tell you that you had much power to do anything beyond simply sending somebody out to look for them.
Mayor Crisman: Ok, thank you, sir.
Council Member Rinker: May I ask one question before we call it? If the citizens in general don’t like the fact these two Council people left here this evening, what recourse is it for the Town in regards to these two particular Council people? Can there be a recall of vote? Can there be a rejection of these two people?
Mr. Wiley: We don’t have recall elections in Virginia. People can be removed from public office only for misfeasance or malfeasance in office and the definition of what constitutes misfeasance or malfeasance is often in the eye of the beholder, but the procedure for doing that is that a certain percentage of the registered voters have to file a petition with the Circuit Court to do that.
Council Member Rinker: All right is that a 2/3 of the majority of the number of voters that transpired during that course of the election of which those persons or persons were elected?
Mr. Wiley: I don’t have the statutes before me. I would be surprised if the requirement is as high as 2/3’s, but it might be.
Council Member Rinker: Okay. So there is some type of punitive action that can be taken by the citizens if so chosen.
Mr. Wiley: It’s always possible for the registered voters, whatever the required statutory percentage of the registered voters is, to file that petition. I don’t know whether your folks run by district or at-large.
Council Member Rinker: We’re run at-large.
Mr. Wiley: So, if they’re at-large, it would be the percentage of the registered voters and I believe it is the percentage of the number who voted in the past election. But, once that petition is filed then it is up to the Court to determine if malfeasance has actually occurred or not --- it’s not automatic that you’re out once the petition is filed.
Council Member Rinker: I’m with you. All right, sir, that answers my questions.
Mr. Arthur: Roger, thank you very much for your graciousness in being willing to open this up to the public meeting and I think it was important to do that and we very much appreciate that. Anybody else have any other questions?
Council Member Le Vine: I’d just like to re-iterate, I appreciate your advice, your candor, your clarity; it has helped me and I appreciate that.
Mr. Wiley: Well, I’m glad to help. I’m sorry you’re in this dispute here at your first meeting; that’s difficult, but…
Council Member Le Vine: It makes subsequent meetings easier; it can’t get harder.
Mr. Arthur: Roger, thanks, again, for you time tonight.
Mr. Wiley: Doug, if you or the Town Manager have anymore questions for me, I’ll be in the office tomorrow morning.
Mr. Arthur: All right. Thanks for your courtesy. Good night.
Following the conference call, Council Members returned to their seats and Town Attorney Arthur stated the other reason for going into Executive Session was to discuss personnel matters. He said that obviously this cannot happen for the same reasoning. He felt he should tell Council Members that “the personnel that were to be appointed, in accordance with our Charter and our Code, basically the wording is that they shall be appointed at the July meeting or as soon as practicable thereafter. Obviously, it’s not practicable tonight because you don’t have a quorum to appoint anybody.” He said that the appointments can take place at a later time. He again read from the Code and listed the appointed positions and said the only appointment not “spelled out” was the Town Attorney and he said he was going to stay on as long as necessary. He feels the appointments can be made at the next meeting.
Council Member Le Vine asked what would happen in the interim. Are the officials on an extension? What is the legal status? He added that of course they were being paid, but was there an implicit month-to-month contract?
Town Attorney Arthur said there appointment would continue until a successor was named. He said that of course, nothing could be done that night. Council Member Le Vine said he is wondering about their status --- ”there appointment, by definition, is continued until some action is taken.” Town Attorney Arthur said it is not explicit in the Charter, but he thinks that’s the law: that they would continue until they or someone else were appointed.
Mayor Crisman said that since no further business could take place, the meeting was adjourned at 9:43 p.m.