Minutes

The Town Council met in regular session on Monday, February 2, 2009, in the Council Room of the Town Hall, 127 Center Street, South. Mayor M. Jane Seeman, called the meeting to order with the following members of Council present: Laurie G. Cole, Daniel M. Dellinger, Edythe F. Kelleher, George E. Lovelace, Michael J. Polychrones, and Maud F. Robinson. Also present were John H. Schoeberlein, Town Manager; Steven D. Briglia, Town Attorney; and Carol A. Orndorff, Town Clerk.

The invocation was offered by Rev. Craig Burns, Pastor, Vienna Assembly of God Church; followed by the Pledge of Allegiance to the Flag of the United States of America.


APPROVAL OF THE MINUTES OF THE REGULAR COUNCIL MEETING AND ONE PUBLIC HEARING OF JANUARY 26, 2009.

Councilwoman Cole stated a correction change on Page 4 of the Minutes was necessary, indicating the vote of Councilman Polychrones relative to the Pod Ordinance had been Nay and not as indicated. The Town Clerk noted the correction.

Councilwoman Kelleher also noted a correction on Page 4, which the Clerk also noted.

It was moved to approve the Minutes of the Regular Council Meeting and One Public Hearing of January 26, 2009, as corrected.

Motion: Cole
Second: Dellinger
Carried unanimously


RECEIPT OF PETITIONS AND COMMUNICATIONS FROM THE PUBLIC.

Mr. Hal Feinstein, 406 Tapawingo Road, S.W. addressed Council and spoke on the knowledge and expertise of the members of the Planning Commission and the Board of Zoning Appeals. It was his opinion that the members were not qualified on various subject matters, such as the technical issues involved with the application of Cricket Communications, Inc. He thereafter, spoke on various factors of the application and also indicated that he felt some of the Board Members displayed arrogance. Mr. Feinstein suggested that the Town Council should provide budgeted monies to seek expert assistance in applications of this nature; and that he would be submitting a letter containing his suggestions.

Mrs. Sonnet Lee, 504 Gibson Drive, S.W. questioned when residents could be heard who were speaking in opposition to the lease and antenna location on the water tower. Mayor Seeman indicated she would hear testimony from residents on both issues.


ADMINISTERING THE OATH OF OFFICE TO THE VIENNA VOLUNTEER FIRE DEPARTMENT OFFICERS AND BOARD OF DIRECTORS.

Mayor Seeman invited the Officers and Board of Directors of the Vienna Volunteer Fire Department to come forward and thereafter, administered the Oath of Office.


REPORT AND INQUIRIES OF COUNCIL MEMBERS.

Councilman Dellinger spoke of the County Board of Supervisors indication that they were developing an Economic Advisory Commission, with the first meeting this week. Mayor Seeman stated she would be discussing this matter later this evening.

Councilman Dellinger expressed his support of the unified letter from the Town’s Association concerning the HB#599 Funding. He also expressed his disappointment in the letter received from School Board Member Gibson regarding school trailers. Councilman Dellinger from his research, there is approximately 3,250 student population in this area however, Cedar Lane School information was not available. He expressed that the Town should continue to pursue the matter relative to the school trailers.

Councilman Dellinger announced that he would be a candidate for re-election in the upcoming May Town Council Election for the 2009-2011 term.

Councilwoman Kelleher as a Board Member of the Vienna-Madison Coalition, expressed her appreciation to the Mayor and to Mrs. Cathy Salgado, staff and Officer Bill Murray for their participation in last Saturday’s “Sticker Shock” program. She thereafter explained for benefit of those present, the nature of the program, which was in participation with the students of Madison High School.

Councilman Lovelace addressed an issue occurring at 610 Truman Circle, S.W., and questioned if any Ordinances were in effect that would address those issues. The Town Manager indicated the Town did have an Ordinance which provides that no move than four (4) unrelated individuals may live in a residence; however, if related there was no limit. Mr. Schoeberlein also indicated that Mr. Hembree was in the process of investigating the matter however, obtaining proof is somewhat difficult. The Town Attorney also indicated that in overcrowding issues in residential homes is difficult to prove; that individuals will access a residence late at night, when knocking on the door they do not answer however, it is possible to get an inspection warrant which is an extreme measure; it is one of the most difficult ordinances in which to enforce. Councilman Lovelace requested Mr. Hembree to send a note to the individual who wrote the Town about the issues and provide some information what is being done.

Councilman Lovelace addressed the Memorandum received from the Department of Public Works regarding recycling. He discussed the anticipated recycling of light bulbs and electrical materials, and questioned when sufficient information would be received regarding the Town providing this service. Mr. Schoeberlein indicated that the Department of Public Works would be sending a report to the Town Council regarding the various aspects.

Councilman Lovelace announced that he would be a candidate for re-election in the upcoming Town Election in May for the 20009-2011 term.

Councilwoman Robinson spoke of reviewing the monthly status report on zoning violations, and felt we were most lenient in taking action. She suggested that a more aggressive approach should be taken in order that the word “get out” the Town is most serious in its zoning ordinances.

Councilman Polychrones discussed with Council the two Bills before the General Assembly relative to eminent domain legislation; that he had spoke with State Senator Howell, (Chairman of the Senate Committee), regarding the Bills and that he would be testifying before them in opposition of enactment.

Councilman Dellinger spoke on the number of signs pulled throughout the Town each month and expressed that some type of action should be taken to eliminate this proliferation of signs. Mr. Hembree spoke on the number of election signs which had been pulled from the rights-of-way, along with some real estate open house signs. Councilwoman Cole also expressed her displeasure regarding the number of election signs which are placed in the rights-of-way and that she would encourage applicants for political signs be informed that they must be responsible for removing them after the election.


REPORT OF THE TOWN MANAGER.

None


REPORT OF THE MAYOR.

Mayor Seeman spoke of receiving an e-mail from the Virginia Municipal League regarding the investment pool legislation, (HB#2583). She indicated that in speaking with Mr. Grant, our Town Director of Finance, he indicted the Bill would impact VML and probably lower its AAA rating. The Mayor indicated the Bill was currently in the House Appropriation and Oversight sub-committee; and that she had called and e-mailed Delegate Shannon and urged that he vote against the Bill.


PROPOSALS FOR ADDITIONAL ITEMS TO THE AGENDA.

None


REQUEST APPROVAL OF PROPOSED LEASES TO CRICKETT COMMUNICATIONS, INC., FOR LOCATION OF TELECOMMUNICATION ANTENNAS AND ACCESSORY EQUIPMENT ON TOWN PROPERTY, LOCATED AT 247 NUTLEY STREET, N.W. (NUTLEY STREET PROPERTY YARD AND WATER TOWER) AND 411-413 TAPAWINGO ROAD, S.W. (TAPAWINGO AND FREDERICK STREET WATER TOWER.

Mr. Briglia stated that based on the Comprehensive Plan which permits telecommunication facilities on Town owned property, Cricket Communications, Inc., made application for the location of cellular telephone/communication antennas and associated ground equipment at the Nutley Street, N.W., water tower and the Tapawingo/Frederick Street water tower. A draft form lease was prepared by the Town and Cricket submitted its application for conditional use permits. Following public hearings before the Planning Commission and the Board of Zoning Appeals, the BZA granted use permits to Cricket for the proposed antennas and support equipment. He continued by stating that during staff review it was brought to Cricket’s attention that the Town was planning to install a water pump and security fencing at the Tapawingo/Frederick Street water tower property; and as part of its application, Cricket has proposed to install a fence to enclose its equipment as well as the water tower and the Town’s new water pump equipment. Mr. Briglia indicated that he and the Town Manager have engaged Cricket in business discussion regarding the fair market value for the leases and the lease amounts are consistent with water tower lease rates paid in the Town of Herndon for the use of its water tower; the proposed lease also includes yearly increases of 3%.

Mayor Seeman clarified for all present and for the record, that the Board of Zoning Appeals in granting the Conditional Use Permit, conditioned that only one (1) antenna for each sector would be allowed.

Council Members Robinson and Dellinger discussed with the Town Attorney the conditions upon any future or subsequent owners of the equipment. Mr. Briglia indicated that the lease was non-exclusive and any new or subsequent provider must come before the Town, i.e., Town Council, Planning Commission and Board of Zoning Appeals for approvals.

Councilwoman Robinson discussed the location of the driveway at the Tapawingo Road/Frederick Street water tower, along with the color of the antennas. Mr. Edward Donohue, Council for Cricket, indicated the driveway would be off of Frederick Street, and Cricket would paint the antennas the color of the water tower. Thereafter, Mr. Briglia and Mr. Donohue agreed to include this provision within the lease agreement.

Mayor Seeman called upon anyone in the audience wishing to speak on the proposed lease agreements.

Ms. Anne Rutherford, 501 Gibson Drive, S.W., spoke against installing the antennas in a residential area, and submitted her comments in writing to the Mayor. Mayor Seeman entered the comments into the Official Record. (Attached to Official Minutes.)

Mr. Hal Feinstein, 406 Tapawingo Road, S.W. questioned the fee being charged Cricket and indicated he had spoken to people in the telecommunication business and it appears the Town is giving the deal away; he also cautioned the Town in using Herndon as an example.

Councilwoman Cole indicated that as part of the lease terms, Cricket is providing fencing; that Cricket is also required to abide to all environmental laws and must be compliant with the FCC.

Sonnet Lee, 404 Gibson Drive, S.W., questioned if the Town Council ever hired a consultant to determine a fair market value for the site; she would request that the Town not approve the lease agreements until a market research had been conducted. She spoke on the decline in property values; that the antennas will be ugly and ruin the look of the neighborhood. The antennas will destroy the entire neighborhood just for the benefit of other Town residents.

Mike Pool, 502 Tapawingo Road, S.W., spoke of the Town changing the Comprehensive Plan to provide for the water tower antennas; that other localities throughout the United States do hold the line and deny approval and spoke of a study conducted in Florida that property value declined due to cell phone towers.

Mayor Seeman discussed the Federal Telecommunication Act with the Town Attorney and the impact upon the Town; that under the law the antennas could not be denied.

Steven Berkowitz, 900 Frederick Street S.W., discussed with the Town Attorney the fence provision within the lease agreement; and thereafter discussed the use permit process and questioned if the Town could monitor the emissions.

Mr. Hembree, Director of Planning & Zoning, indicated that all locations where telecommunication antennas are installed are required to submit periodic reports relative to emissions.

Mr. Donohue stated that an annual emission report must be filed with the Town and had no objection to inclusion of this provision within the lease.

Mr. Berkowitz further discussed future assignment of the lease to another entity, impact of the fence upon existing trees. Mayor Seeman assured Mr. Berkowitz that appropriate landscaping would be provided.

Mr. Craig Herrero, 717 Hillcrest Drive, S.W., suggested that the Town should receive more money from the lease of the two sites.

Mr. Harry Proctor, 245 Nutley Street, N.W., spoke against installation of the antennas; that the lease rates should not be based on Herndon; that it was the fiduciary duty of the Town to conduct all appropriate research; that the antennas should be placed on existing telephone poles.

Members of Council discussed telecommunication coverage within the Town, areas where signals were poor and non-existent; along provisions within the lease relative to noise levels from the ground equipment.

Councilwoman Robinson expressed that she felt the more the issues were discussed the more other issues arose.

Councilman Lovelace spoke against the endeavor and felt no compelling reason had been demonstrated to approve the lease or installation of the antennas; that he would be voting against the matter.

Mayor Seeman indicated that they must look at the whole picture and what was good for the entire Town, not just one section.


It was moved for the approval of the proposed leases, as amended this evening, with Cricket Communications, Inc., for use of Town Property, to locate telecommunication antennas and accessory equipment, located at 247 Nutley Street, N.W. (Nutley Street Property Yard Water Tower) and 411-413 Tapawingo Road, S.W. (Tapawingo and Frederick Street Water Tower), as submitted by the Town Attorney and further authorize the Mayor to execute the leases on behalf of the Town of Vienna.

Motion: Polychrones
Second: Cole
Motion carried: 5/2 – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Polychrones, Mayor
Seeman
Voting Nay: Lovelace, Robinson


REQUEST FOR APPROVAL OF SITE PLAN MODIFICATIONS PERTAINING TO SIDE SETBACKS FOR ACCESSORY BUILDINGS/STRUCTURES, AND A PERIMETER FENCE ON PROPERTY LOCATED AT 411-413 TAPAWINGO ROAD, S.W., AND IN THE RS-10, SINGLE-FAMILY DETACHED RESIDENTIAL ZONE. FILED JOINTLY BY EDWARD DONOHUE, DONOHUE & BLUE PLC, AGENT FOR CRICKET COMMUNICATIONS, INC., AND BY THE TOWN OF VIENNA, OWNER.

Mr. Greg Hembree, Director of Planning & Zoning, stated that relative to the application for a telecommunications exchange by Cricket Communications, Inc., one of the sites selected is the existing water tower located on the property at 411 and 413 Tapawingo Road, S.W. The 0.7448 parcel comprises two RS-10 zoned lots in the Vienna Woods subdivision; situated 40 feet from Frederick Street, S.W. and 95 feet from Tapawingo Road, S.W. where there are six legs of the 119 foot-tall structure. According to the applicant’s survey, the diameter of the circle that is enclosed by the water tower legs is approximately 42 feet; there are 12 mature trees scattered around the subject parcel with six providing minimal screening between the water tank and the adjoining streets. The subject site is completely surrounded by single-family detached residential dwellings and according to the property deeds, these two lots were acquired on September 25, 1956 specifically for the provision of water service to Town residents. Mr. Hembree continued by stating that certain modifications are associated with the proposed improvements which require approval by the Town Council. In accordance with Section 18-156 and 18-257 of the Town Code, the Planning Commission reviewed proposed modifications 1 and 2 and recommends approval. These modifications are: (1) proposed for installation at approximately 21 feet from the right-of-way line for Frederick Street, is a pre-manufactured booster pump station. The pump station is a sound-deadening cabinet that measures 8 feet in height, 8 feet in length and 6 feet in width and contains the water circulation pump and controls. According to Public Works staff, the Town Council approved installation will yield a detectable whine from the motor and drives right at the cabinet, but their experience is that the noise becomes undetectable from a distance of 10 feet or farther from the building. Because Section 18-33D of the Town Code requires a minimum setback of 40 feet for buildings other than dwellings and their accessory buildings in the RS-10 zone; a site plan modification will be required; (2) the subject parcel comprises two residentially zoned parcels that were acquired by the Town on September 25, 1956 specifically for the provision of water service to the town and because these parcels have never been consolidated and approximately 70 percent of the existing water tower encroaches beyond this same 40-foot minimum side-yard standard, the staff recommends a housekeeping modification to the site plan to formally authorize its current placement. Mr. Hembree continued by indicting that the applicant has proposed an 8 foot-tall perimeter fence around the entirety of the water tower and Cricket Communications site, with a total running length of 408 feet. The maximum permitted height of any fence in a residential zone is 6 feet and there is an additional prohibition on the use of barbed wire or other security enhancement devices. In recognition of the need for certain types of fencing for the protection of government facilities, structures or utilities, new Section 18-173.16 of the Town Code was adopted in November, 2004. The installation of such security enhancement devices, including height, is permitted after approval by the Town Council and after review and recommendation by the Director of Public Works and Chief of Police.

Mayor Seeman entered into the record the Memorandum received from the Department of Public Works, dated January 23, 2009 and the Planning Commission dated February 2, 2009. (Attached to Official Minutes.)

Councilwoman Cole discussed with Mr. Hembree the driveway
material and location, with Mr. Hembree indicating the driveway would be paved and access would be from Frederick Street.

Councilman Lovelace discussed with the Town Manager and Mr. Hembree the requirement for fencing for security purposes, with Mr. Schoeberlein indicating that this requirement was enacted by Homeland Security.

Councilman Dellinger questioned if one of the large existing trees could be saved, with Mr. Schoeberlein indicating they would attempt to preserve as much as possible of the existing trees.


It was moved for the approval of the requested Site Plan Modifications pertaining to side setbacks for accessory buildings/structures, on property located at 411-413 Tapawingo Road, S.W. and in the RS-10 Single-Family Detached Residential zone as filed jointly by Edward Donohue, Donohue & Blue, PLC, agent for Cricket Communications, Inc., and by the Town of Vienna, owner. It was further moved for the approval of the proposed 8 foot-tall perimeter fence on the subject tract in accordance with the provisions of Section 18-173.16 of the Vienna Town Code, subject to approval by the Board of Architectural Review.

Motion: Cole
Section: Mayor Seeman
Motion carried: 6/1 – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Polychrones, Robinson,
Mayor Seeman
Voting Nay: Lovelace



REQUEST APPROVAL TO UTILIZE ENGINEERING SERVICES FROM TRI-TEK ENGINEERING, UNDER RFP CONTRACT #07-04, DESIGN AND ENGINEERING FOR THE CONSTRUCTION OF CURB, GUTTER, SIDEWALK AND STORM WATER IMPROVEMENTS ON MEADOW LANE, WARE STREET AND COURTHOUSE ROAD, IN THE AMOUNT OF $35,168.17.

It was moved for the approval to authorize an expenditure in the amount of $35,168.17 to Tri-Tek Engineering for the design of Meadow Lane Park street frontage improvements.

Motion: Lovelace
Second: Polychrones
Carried unanimously – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Lovelace, Polychrones,
Robinson, Mayor Seeman



SET DATE FOR PUBLIC HEARING ON A PROPOSED ORDINANCE TO AMEND THE CODE OF THE TOWN OF VIENNA, CHAPTER 18, ZONING, BY ADDING A NEW ARTICLE 15.2, PC-PARK AND CONSERVATION ZONE REGULATIONS, AND ADDING NEW SECTIONS 18-126.11: 18-126.20 TO THE CODE OF THE TOWN OF VIENNA.

It was moved for the approval of setting the date of March 2, 2009 for conducting a public hearing on a Proposed Ordinance, as drafted in substitute form by the Planning Commission, to amend Chapter 18, Zoning by adding a new Article 15.2, PC-Park and Conservation Zone Regulations, and adding new Section 18-126.11: 18-126.20 to the Code of the Town of Vienna. I further move the Town Clerk be directed to advertise Notices of Public Hearing.

Motion: Robinson
Second: Lovelace
Carried unanimously – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Lovelace, Polychrones,
Robinson, Mayor Seeman


CONVENE INTO CLOSED SESSION FOR MATTERS OF PERSONNEL AND LITIGATION.


It was moved that a Closed Session be convened at this time to discuss matters of personnel, as well as possible discussion with the Town Attorney relative to the cases of Covel vs. Town of Vienna, pursuant to Virginia State Code Section 2.2-3711.A(1)(7), 1950 as amended. It was further moved that upon conclusion of the Closed Session the Town Council will reconvene in Open Session and report on the discussion.

Motion: Kelleher
Second: Robinson
Carried unanimously – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Lovelace, Polychrones,
Robinson, Mayor Seeman


The Town Council convened in Closed Session at 10:30 P.M.


The Town Council reconvened in Regular Session at 11:20 P.M. Noted for the record that all Members of Council previously noted were again present, being: Cole, Dellinger, Kelleher, Lovelace, Polychrones, Robinson, Mayor Seeman.

Mayor Seeman reported that during the Closed Session matters of personnel were discussed relative to appointments to Boards and Commissions, and review of the office operations
with the Town Clerk; that no other business had been discussed.


It was moved that the Members of the Vienna town Council be polled to affirm that during the Closed Session convened this date, February 2, 2009, the Town Council met for the purpose of discussing matters pertaining to personnel. It was further moved that the Certification Resolution be adopted in accordance with State Statutes and the Town Clerk is authorized to execute the Certification Resolution. It was further moved the Closed Session be continued to February 9, 2009 at 7:15 P.M. in accordance with Virginia Code Section 2.2-3711.A(1) for the purpose of discussing matters of personnel, specifically the conducting of interviews with individuals interested in appointment to Town Boards and Commission; and Section 2.2-3711.A(7) discussion with the Town Attorney regarding matters of litigation.

Motion: Kelleher
Second: Robinson
Carried unanimously – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Lovelace, Polychrones,
Robinson, Mayor Seeman

As noted above, the Town Clerk conducted a Poll vote of the Members of Council, recorded same and executed the Certification Resolution.



It was moved that Mr. George Creed be recommended to the Fairfax County Circuit Court for appointment to the Board of Zoning Appeals to complete the term of office of Mr. Charles Brewer.

Motion: Kelleher
Second: Mayor Seeman
Carried unanimously – Poll vote

Voting Aye: Cole, Dellinger, Kelleher, Lovelace, Polychrones,
Robinson, Mayor Seeman



It was moved for the appointment of Councilwoman Edythe Kelleher to the Fairfax County Board of Supervisors Economic Advisory Commission, as the Town Council representative.

Motion: Mayor Seeman
Second: Robinson
Carried unanimously


It was moved to adjourn.

Motion: Robinson
Second: Cole
Carried unanimously


The Regular Meeting of Council adjourned at 11:25 P.M.

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