Board of Supervisors Meeting Minutes-July 22, 2010
Virginia:
AT A REGULAR MEETING of the Nelson County Board of Supervisors at 7:00 p.m. in the Board of Supervisors Room located in the Nelson County Courthouse.
Present: Constance Brennan, Central District Supervisor – Chair
Joe Dan Johnson, South District Supervisor – Vice Chair
Thomas D. Harvey, North District Supervisor
Thomas H. Bruguiere, Jr. West District Supervisor
Stephen A. Carter, County Administrator
Candice W. McGarry, Administrative Assistant/Deputy Clerk
Fred Boger, Director of Planning and Zoning
Judy Smythers, Circuit Court Clerk
Absent: Allen M. Hale, East District Supervisor – East District
- I. Call to Order
Ms. Brennan called the meeting to order at 7:00 pm, with four (4) Supervisors present to establish a quorum and Mr. Hale being absent.
- Moment of Silence
- Pledge of Allegiance – Mr. Harvey led the Pledge of Allegiance
Ms. Brennan polled the Board and there were no changes made to the agenda.
- II. Public Hearings
- Change/Correction of Polling Place Names: Amendment of Chapter 2 (Administration), Article II (Board of Supervisors) Section 2.28 (Precinct and polling places) of the Code of the County of Nelson, Virginia
Proposed amendment to change the following: under South District, Shipman Precinct, following the words “Polling Place” there is hereby deleted the words “Shipman Civic Center, Shipman” and substituted therefore “American Legion Post Number 17, Shipman”; and, further, in Section 2.28 under Central District, Nellysford Precinct, following the words, “Polling Place” there is hereby deleted the words “Tuckahoe School, Nellysford” and substituted therefore “Tuckahoe Clubhouse, Nellysford”. (O2010-07)
Ms. Brennan introduced the item of business and Mr. Carter noted that the local Electoral Board had brought it to staffs’ attention that the names of the polling places in Shipman and in Nellysford were not as established in the Ordinance by the Board. He reported that there was no material change to locations or voting impacts and the Ordinance was merely correcting the names of the two (2) precinct buildings. He noted that if the Ordinance was approved after the public hearing, staff would send it off to the State Board of Elections and the Department of Justice.
In response to the Board’s questions, Mr. Carter noted that there were no other names that needed changing, he had verified the proposed name changes, and the Ryan School name was changed in 2002.
Ms. Brennan then opened the public hearing and there being no persons wishing to be recognized, the public hearing was closed.
Mr. Harvey moved to approve Ordinance O2010-07 an Ordinance to Amend Chapter 2, Article 2, Section 2-28 Relating to the Names of Local Polling Places and Mr. Johnson seconded the motion. There being no further discussion, Supervisors voted unanimously (4-0) by roll call vote to approve the motion and the following Ordinance was adopted:
(ORDINANCE – 02010-07)
AN ORDINANCE TO AMEND CHAPTER 2 (ADMINISTRATION), ARTICE 2 (BOARD OF SUPERVISORS), SECTION 2-28 (PRECINCTS AND POLLING PLACES) RELATING TO THE NAME(S) OF (LOCAL) POLLING PLACES
BE IT ORDAINED by the Board of Supervisors of the County of Nelson, Virginia that said Board does hereby amend Chapter 2, Article II, Section 2-28 of the Code of the County of Nelson, Virginia as follows:
South District: Shipman Precinct
Polling Place: Delete “Shipman Civic Center, Shipman” and substitute therefor “American Legion Post #17, Shipman”.
Central District: Nellysford Precinct
Polling Place: Delete “Tuckahoe School, Nellysford” and substitute therefor “Tuckahoe Clubhouse, Nellysford”.
This amendment shall be effective upon enactment.
- III. New/Unfinished Business
- Rockfish Heights Subdivision, Section II
Ms. Brennan introduced the item and Mr. Fred Boger gave an overview of the issue before the Board and noted that Mr. Luwis was requesting that the Board review the decision made regarding time limits imposed for him to complete the road in Section II of the Rockfish Heights Subdivision.
Mr. Boger then reported the following sequence of events:
The property owner of Rockfish Heights, Section II contacted the Planning office and wanted to know when the required road will be constructed in this section of Rockfish Heights Subdivision. The final subdivision plat for Section II was signed on October 10, 2007. The construction scheme presented to the Planning office in 2007 was that once the majority of lots in Section I were sold, then the developer would proceed with constructing the road in Section II. The road has been completed in Section I.
Constructing the road in Section II was going to be more difficult due to the topography of the site which goes up the side of a mountain. The developer posted a Letter of Credit with the County to guarantee the completion of this road. When the bond was posted, the developer did not want to give a specific date when this road would be completed. Two lots were sold in Section II in 2007 and it was the Planning Director’s understanding at that time the owner did not have any immediate plans to develop them.
In 2008 another lot changed ownership as a result of a deed of distribution between partners in the partnership. The owner of this lot wants the road constructed so that he can have access to his property.
Staff has discussed this request in detail and determined that pursuant to the Subdivision Ordinance, Section 4-2, Improvements-General Requirements, Item C, Completion Dates for Bonded Improvements, the Planning Director has to request the developer to set a completion date for construction of the road in Section II. The Planning Director contacted the developer on May 14, 2010 requesting that he set a completion date for constructing the road in Section II. On May 21, 2010, the Planning Director received his response and the date given was that the road will be constructed in “2020”.
Staff has discussed the completion date with the County Administrator and County Attorney and feels the proposed time period is excessive. A more realistic time period would be between 1 to 3 years to construct this road. Consequently, pursuant to Section 4-2 the Planning Commission is being asked to review the issues and recommend a construction date. Mr. Boger stated that in the future, a road completion date will be required prior to approval of the subdivision plat which will prevent this type of problem.
At the Planning Commission meeting, Chair Proulx proposed that the road completion date be set at 3 years from June, 2010. Commissioner Russell then made the following motion:
In accordance with Section 4-2 of the Subdivision Ordinance, the completion date for the bonded improvement of the road to Section II of the Rockfish Heights Subdivision must be completed by June 23, 2013. Commissioner Harman provided the second, and motion passed 5-0.
Mr. Boger then noted that subsequent to the Planning Commission’s actions, Mr. Luwis noted that 2013 was not acceptable to him and he suggested 2015. Consequently the Board is being asked to either sustain the Planning Commission’s actions or set another date.
Mr. Carter added that staff may bring something back to amend the Ordinance language such that the Board could give the Planning Commission power to handle this situation in the future. He noted that this may be a long term process which would require the road to be on the plat along with the date of completion.
Mr. Johnson questioned whether or not this could be allowed in phases and Mr. Boger said it would be possible, and it would have to be worked through.
Mr. Carter stated that at the time, staff and the Board was asked to let the completion date go and now they were being asked for it to be imposed and there were competing interests involved leaving staff caught in the middle.
Members discussed that people should not be allowed to purchase lots in a subdivision when the road is not in place and/or once the lots have sold, the road ought to be finished. They also discussed whether or not in this case all of the lots in Section I had been sold.
Mr. Harvey suggested that staff check the minutes from when the decision was made on when the road would be finished. He recalled it being said that when the majority of lots in phase I were sold, the road would be completed.
Mr. Boger reported that the bond was still in effect for Phase I and II and that Mr. Luwis now wanted to reduce it down because he got one estimate for half of the cost of the bond. Mr. Boger noted that he would need at least one more such estimate for it to be considered.
Mr. Harvey reiterated that the Board should not approve future subdivisions without requiring the developer to build the roads first.
Mr. Carter reported that Mr. Luwis had amended his requested date to 2015; five years from now.
The Board then recognized Mr. Jayce Goodling, of 172 England Rock Rd in Afton, Mr. Luwis’s former partner in the venture.
Mr. Goodling reported that he was partners with Mr. Luwis at the beginning of this and recalled that they stated to the Planning Commission and the Board that when the majority of lots in Phase I sold, they would proceed with Phase II. He stated that it was his understanding that all of the lots have been sold at this point and that there were seven (7) lots in Section I and fifteen (15) lots in Section II. He reported that he owned one (1) lot in Section II as part of the partnership dissolution agreement.
Ms. Brennan indicated that she would like more information and a map of the whole development. The Board then agreed by consensus to get more information and defer action until the next Board meeting, and no action was taken.
- ICON Engineering, Inc. Contract Authorization (R2010-45)
Mr. Carter explained the purpose of the contract for the public as retaining professional engineering and management services to complete the installation of a fiber optic backbone that would enable high speed internet, voice and cable from Afton down Rt. 6 and Rt. 29 to Colleen, including the installation of four (4) towers. He reported that the project was funded through federal stimulus funds. He added that the County had issued a request for proposals and had gotten thirteen (13) responses, interviewed five (5) firms, with the interview panel including staff and one (1) Board member. He further added that the County had to follow the Competitive Negotiations process required for these services and that the County had negotiated an agreement with ICON Engineering, which was being fine tuned. He noted that the County was in a position to move forward and that there were no serious concerns with proceeding with the contract. He then added that the cost proposal for the consulting services had come in below budget compared to what was estimated in the stimulus grant proposal and that staff recommended authorization to execute the contract.
Mr. Johnson indicated that he was concerned that the County would be the party to negotiate any Right of Way agreements and Mr. Carter confirmed that would be the case or the County could contract ICON to do this as an additional service. He noted that ICON would need to do the field work to identify any easements that would be necessary and he reiterated that the County had negotiated a preliminary pole attachment agreement with CVEC to hang the fiber aerially. He added that the County would not be able to use their easements and the County would have to get its own; but the extent of this was to be determined. He added that staff would be responsible to negotiate these easements and ICON would provide help if needed to establish metrics.
Mr. Carter then noted that all of the consultants interviewed, noted that the County should try to use VDOT Right of Way when possible, if necessary to avoid getting easements. He reiterated that the present contract does not provide this service above identifying the easements that would be needed.
Mr. Johnson stated that this could impact staff and the cost was unknown. Mr. Carter described how the cost of easements was derived for the Piney River III project and noted that they would take the amount of land for the easement and its pro-rata share to the whole acreage, related to the value and the cost was negotiated from there. He added that for that project 30-50 easements were done with no cost to the County and that would be the objective in this project.
Mr. Johnson stated that the advantage to going overhead with the fiber was that it was easier and they could string extra pieces and pop out laterals to the home.
Mr. Carter reminded the Board that they passed a resolution to obtain ICON on a sole source decision but wasn’t successful on the federal level so they decided to go ahead with issuing an RFP.
Mr. Carter then reiterated that he thought that County staff could handle getting any easements and the Board could also help if needed. Mr. Johnson noted that he wanted ICON to identify those poles that may need easements. Mr. Carter added that that was key in getting the process started and that all poles were owned by CVEC.
In response to Ms. Brennan’s questions, Mr. Carter then noted that staff would discuss the fees provided and confirm unit costs. He noted that the language pertaining to conforming to federal immigration law and the use of the term “alien” vs. undocumented person was the verbiage from the State Code, the Virginia Public Procurement act, but noted he would check to be sure. Mr. Carter then explained that the Engineer retained any copyrights due to protection under U.S. codes, however there was a paragraph that allowed the County free access to use and modification of the resulting work. He noted that he did not think this would hurt the County’s interests, but that he would explore this more the next day.
Mr. Carter then explained that “Dark Fiber Lease Agreements” in the RFP response referred to the sale of middle mile fiber and that ICON would help the County with this. He noted that as they were designing the construction project there was parallel language to retain network operators and the County would have contracts with them, who would then outsource the network to others and it would be open access. Mr. Carter then explained that the term “outside plant” referred to the towers and other major equipment.
There being no further questions or discussion, Mr. Johnson then moved to approve Resolution R2010-45 Resolution Authorizing the Execution of the Agreement with ICON Engineering, for Engineering, Construction Administration, and Federal Grant Management Services for the Broadband Infrastructure Project and Mr. Harvey seconded the motion. There being no further discussion, Supervisors voted unanimously (4-0) by roll call vote to approve the motion and the following resolution was adopted:
RESOLUTION-R2010-45
NELSON COUNTY BOARD OF SUPERVISORS
RESOLUTION AUTHORIZING THE EXECUTION OF THE AGREEMENT WITH ICON ENGINEERING FOR ENGINEERING, CONSTRUCTION ADMINISTRATION, AND FEDERAL GRANT MANAGEMENT SERVICES FOR THE BROADBAND INFRASTRUCTURE PROJECT
RESOLVED, by the Nelson County Board of Supervisors, the County Administrator, Stephen A. Carter, be and is hereby authorized to execute on behalf of Nelson County, administrative agreements/amendments with ICON Engineering, Inc., a division of ICON Broadband Technologies, for the provision of Engineering, Construction Administration, and Federal Grant Management services related to the implementation of the County’s Broadband Infrastructure Project.
- Regional Artisan Trail Contract Authorization (R2010-46)
Mr. Carter noted that VA DHCD had reviewed the five (5) project elements for the grant award and that the County was partnering with Albemarle for establishment of the regional trail. He added that the County had completed the grant prerequisites and the contract would authorize an additional $12,000 for a total of $15,000 to be used for brochures, trail location, marketing etc. He reiterated that there was no expense to the County and was requesting authorization to execute the contract.
Ms. Brennan noted that she thought that it was a great thing and another reason to visit Nelson County.
Mr. Bruguiere then moved to approve resolution R2010-46 Resolution Authorizing the Execution of the Planning Grant Agreement with VA-DHCD for Grant #10-PG-11 Regional Artisan Trail Development Project and Mr. Johnson seconded the motion. There being no further discussion, Supervisors voted unanimously (4-0) by roll call vote to approve the motion and the following resolution was adopted:
RESOLUTION-R2010-46
NELSON COUNTY BOARD OF SUPERVISORS
RESOLUTION AUTHORIZING THE EXECUTION OF THE PLANNING GRANT AGREEMENT WITH VA-DHCD FOR GRANT #10-PG-11 REGIONAL ARTISAN TRAIL DEVELOPMENT PROJECT
RESOLVED, by the Nelson County Board of Supervisors, the County Administrator, Stephen A. Carter, be and hereby is authorized to execute on behalf of Nelson County, administrative agreements/amendments with the Virginia Department of Housing and Community Development related to Planning Grant #10-PG-11, Regional Artisan Trail Development.
Mr. Carter noted that an outcome of the grant is a document that would show where the artisans are etc.
- VACo Correspondence re: Collective Bargaining Mandate for Public Safety Employees
Mr. Carter noted that VACO had provided letters endorsed by them that were sent to the General Assembly regarding legislation that was added on to an appropriations bill to require all states to have collective bargaining for public safety employees. He noted that VACo and VML were both opposed to this because it pits Sherriff’s Departments against Boards of Supervisors to negotiate salaries and benefits. He stated that this was unfair to other employees and would allow others to dictate what happened in Virginia. He noted that Senator Webb’s office had advised that they did not think the legislation would go anywhere. He advised that the Board take this under advisement unless they wanted to act.
Members discussed whether or not the bill would go through if attached to an appropriations bill and Mr. Carter noted that he thought that it was a standalone bill. Ms. Brennan noted that the VACo Board had discussed this subject at great length and that she was not in favor of it because it did not seem like a fair thing.
Members and staff discussed expressing the Board’s wishes to the legislators and the consensus was to wait and see what the Senators advised before taking action. The Board indicated that Mr. Carter should let them know if the legislation would come up before their next meeting, so that a letter may be sent.
- J. Smythers Correspondence re: Circuit Court Clerk’s Office Funding
This item of business was considered after item B. in order to accommodate the Circuit Court Clerk in attendance.
Mr. Carter noted that Ms. Judy Smythers was present and she then addressed the Board regarding her request for additional Part-Time employee funding.
Ms. Smythers reported that her office was struggling to keep up and has had a full-time vacancy. She reported that the vacancy due to retirement did not occur when she had originally expected. She noted that even though she has hired a full-time replacement, she has used $1,000 of her $2,000 Part Time money already. In justifying her request, she noted that the State says that her office is entitled to 1.3 more Full Time positions, but the State does not have the funding for this. She added that there has been no increase in staffing in her office in twenty-seven (27) years, since 1987, and there has been a thirty percent (30%) increase in workload. She noted the local revenue numbers that her office collects and stated that she was asking the Board to consider restoring her part time money, such that she would have $4,000 to pay in the next calendar year to train her new Full Time employee and keep up with the work.
Mr. Carter reported that he had spoken with Ms. Smythers and she knew his concerns. He noted that although she was exemplary in managing her office, his only concern was that the current budget was presented to the Board with these cuts; in order to be in good stead for the fiscal year. He added that staff had to manage the budget and that other offices were being asked to manage with these cuts and the decision was potentially precedent setting. He noted that there were contingency funds that would cover the request but his concern was altering the overall budget that was structured that way with the cuts in place. He reported that Ms. Smythers only used $500 of her appropriated $7,000 last fiscal year and did not use that until June and that every office had a balance of funds at the end of the year.
Mr. Harvey then moved to appropriate $4,000 to the Part Time funds of the Circuit Court Clerk’s budget and Mr. Bruguiere seconded the motion. There being no further discussion, Supervisors voted unanimously (4-0) by roll call vote to approve the motion and the funding request.
Ms. Brennan indicated that she appreciated Mr. Carter’s comments; however the request was justified.
- TJSWCD Correspondence re: At-Large Director Vacancy
Mr. Carter reported that the correspondence was merely a notice that there was a vacancy on the Thomas Jefferson Soil and Water Conservation District Board. He noted that the County had two Directors, David Collins and Paul Davis and that this was an At-Large Director vacancy. He advised them to let him know if they thought of anyone to nominate.
- IV. Public Comments
Ms. Brennan opened the floor for public comments and the following persons were recognized:
1. Tracy Davis, Beech Grove
Mr. Davis noted the information on the Dog Leash law that has been brought up and that he was offended with some of the language used in the paper by Mr. Bruguiere. He noted that he was not concerned about Wintergreen. He stated that Mr. Johnson wanted to see surrounding County laws and noted that everyone had laws and Nelson County did not. He stated that he was opposed to a leash law and wanted to know when the Board would consider it.
Mr. Harvey noted that the Board was gathering information and that what was being discussed was not meant to affect hunters, but rather it was meant to make owners responsible.
Mr. Johnson added that the Board had not used the word leash and has discussed containment; noting the instances where people have been bitten while biking, walking, etc.
Mr. Bruguiere stated that Wintergreen did not have a leash law and his comments were meant to say that to have consistency within the County, they should consider the same law. He noted that he thought that hunting dogs would be exempt, and noted instances at Stoney Creek where dogs would be attacked by those that were let out. He noted the problems in Arrington, Shipman, and in Faber stating that there were documented incidents in the county. He also advised that if dogs were causing destruction on his property; he would shoot them. He advised that people protect their property, but pursue legal limits first by talking to the owners and/or calling Animal Control.
Mr. Johnson reiterated that teeth were needed in the law that says the owner is accountable.
Mr. Davis noted that dogs were not the only problem; coyotes were a problem in attacking his beagles.
2. Marjorie Guthrie, Arrington
Ms. Guthrie noted that her daughter wanted mace to use while walking and that she could not walk without being chased by dogs in Arrington.
3. Tom Guthrie, Arrington
Mr. Guthrie reported that he went to Circuit Court that day and the judge ruled that two (2) dogs were dangerous and were to be destroyed or moved out of state because they attacked and killed his quail. He noted that they tore up the cages etc. He noted that initially, the owners appealed the decision to Circuit Court and the judge ruled that according to state law, if there were three (3) incidents, the dogs would be destroyed. He reported that the dogs were released to the owners and they were instructed to control the dogs. He said that they tied up the dogs for three (3) days and then when they were let loose, they came back and attacked.
He noted that if dogs are not required to be contained, there would be more of this. He reported that this has cost them $72,000 by losing the eggs the rare quail would have laid. He stated that he was opposed to a leash law and keeping dogs tied because this makes them aggressive. He reiterated that he dealt with rare breeds of quail from all over the country and cannot continue to be in this business if they are going to be killed. He concluded by saying that they were now having to reinforce their cages and fences at their own expense to keep the roaming dogs out.
3, Susan Weiman, Faber
Ms. Weiman noted that she supported an ordinance keeping dogs from running at large. She noted that she saw the pit bulls that attacked a woman and they were running loose.
Ms. Weiman inquired as to whether or not she could shoot the hunting hounds that were running on her property and Mr. Harvey advised should could, but only if they were causing destruction. In response to questions about how to keep them off of her property, members noted that hunters were allowed to come onto property to retrieve their dogs, but must be unarmed.
Mr. Carter added that there was no prohibition on dogs running at large at this point.
4. Willis Ire, Gladstone
Mr. Ire noted that he has had many dogs and has killed his own dogs for being destructive. He noted that he currently had dogs that did not get off of his land much and he had not gotten complaints. He stated that he did not tend to see stray dogs but carried a gun while walking. He noted that he was more afraid of people than a dog.
Mr. Harvey noted that responsible ownership was the issue and Mr. Johnson added that he (Mr. Ire) had handled the situation and some owners were not.
There being no other persons wishing to be recognized for public comment, the public comments session was closed.
Following public comments, Members briefly discussed designating certain areas affected by these problems by Ordinance, and Mr. Carter advised that this could be done. The Board questioned whether or not it should target certain residential areas and this was noted to be problematic as to how would this be delineated. Ms. Brennan added that she lived out in the middle of nowhere (not a residential area) and still had problems with dogs.
Mr. Bruguiere noted that he thought the Board needed to deal with this and Mr. Johnson suggested that they talk to some of the farmers out there to get their perspective.
- V. Adjournment
At 8:25 pm, Mr. Harvey moved to adjourn and there was no second. There being no further discussion, Supervisors voted unanimously by voice vote to approve the motion, and the meeting adjourned.