Rappahannock in the conflict zone

Zoning issues top the list of grievances to supervisors, who scramble to pay for radio system; BZA member takes BZA to court; noise regulation shouted down

Labor Day this year forced the Rappahannock County Board of Supervisors to postpone its September meeting to what turned out to be Laborious Day, and a matching week to follow.

In six-plus hours of holiday-delayed public meeting sessions last Wednesday (Sept. 7), the Rappahannock County Board of Supervisors heard two outpourings of protest and/or dissatisfaction, one primarily focused on the county’s zoning enforcement and planning process — a system it voted late in the day to begin revamping — and the other centered on whether the supervisors ought to pursue a noise ordinance, the overwhelming public opinion being, as expressed at its evening hearing on the matter: You have better things to do.

During a nearly five-hour 2 p.m. meeting that spilled over into its 7 p.m. session, with a closed session sandwiched between (though there were no sandwiches, and one supervisor even came downstairs to beg a bystander to get him a coffee), the board also:

• scrambled to fund its 10-percent share of a $7.6 million, tri-county emergency communications system upgrade and to substantially increase its insurance coverage for emergency responders;

• agreed to recruit citizens willing to serve on an ad hoc advisory committee to look into improving the county’s broadband/cell coverage;

• and agreed, not surprisingly, to routinely schedule a second monthly work session, a public meeting that would happen (when needed) on the third Monday of the month — including one at 7 p.m. next Monday (Sept. 19) to address further funding (in other words, borrowing) for the 800 Mhz emergency-communications system upgrade in fiscal year 2018. That project — although its out-of-county radio towers are used daily by Rappahannock’s law enforcement and fire and rescue squads — is driven mostly by Fauquier and Culpeper counties, in an agreement that goes back a decade.

Supervisors of both those counties, last Tuesday and Thursday, also approved expenditures to pay their collective share of the system— 90 percent — to contract awardee Harris Corp. Although some funds were set aside in anticipation of the expense, the two-year-old upgrade negotiations unexpectedly accelerated in recent months, and local hopes that funding would not be due until fiscal year 2018 were dashed.

To come up with the $360,000 due this year, funds were transferred from several of Emergency Coordinator Richie Burke’s accounts, from the Fire Levy Fund’s surplus (about $47,000) and from the so-called “contingency fund” (about $250,000) built into the 2017 budget, mostly thanks to the county’s sale this year of the former Aileen factory property in Flint Hill.

Zoning, Part I

The board agreed late in the day, long after a nearly 90-minute public comment session of zoning-related complaints, to begin implementing Jackson district supervisor Ron Frazier’s proposed list of zoning and planning improvements — essentially requiring more (and more regular) reporting of zoning actions and permits, including administrative decisions not requiring board approval, and requiring planning commission and zoning-appeals board members to seek certification in municipal planning courses.

In closed session last Wednesday, the board planned to discuss — among other items, including the 800 Mhz radio contract — the county’s latest zoning-related snafu, which centers around an appeal to be heard by the board of zoning appeals (BZA) at its Sept. 28 regular session by the owner of the now-closed Harmony Manor B&B. The supervisors said they didn’t have a chance to fully discuss it, but it didn’t matter — the case wound up in court this Monday.

This might be a good moment to ask a bystander to get you a coffee.

Harmony Manor owner Randall Fort is appealing the decision made last month by County (and Zoning) Administrator Deborah Keyser to revoke the inn’s special-use permit for two additional bedrooms, which would bring the B&B’s total to five (the permit for three rooms is still valid). Keyser’s decision was based on the observation (first by Harmony Manor’s perennially disharmonious neighbors, and later by Keyser herself) that the inn had failed to meet a one-year deadline to build a series of turnouts along the narrow Clark Lane right of way (allowing traffic to pull over and allow opposing traffic to pass).

In a typical, everyone’s-related-in-Rappahannock scenario, the chair of the BZA, Alex Sharp, has recused himself from the proceedings, since he is the real estate agent representing Fort in efforts to sell the B&B on Clark Lane, the sale price likely to be higher if the inn has five rentable rooms rather than three.

So acting BZA Secretary David Konick was asked to help organize the appeal hearing, and posted notices (including in this week’s edition of the Rappahannock News) announcing that anyone wishing to be heard at the appeal Sept. 28 would be heard. Vice Chair Jennifer Matthews and County Attorney Peter Luke later disagreed; Luke said Monday that state’s revised code for such appeals require only the testimony of the zoning administrator and the appellant, and that changing that process (as Konick did) would open the door to a court appeal of the BZA’s decision, if the BZA upheld Keyser’s decision to revoke the permit.

Over the weekend, Konick, an attorney, appealed to Matthews to cancel the special meeting of the BZA she had called for this Tuesday morning, ostensibly to nullify Konick’s public invitation for comment at the Sept. 28 appeal. Konick filed a motion Monday morning requesting the BZA and Matthews be enjoined from holding the meeting.

The court, and retired substitute Circuit Court Judge Richard Potter, heard the case at 1 p.m. Monday. First, Potter insisted that Konick retrieve the court reporter, citing the Virginia code section that required the stenographer’s presence at an injunctive hearing. Then, when the court reporter was reached and fully enjoined from her drive home to Culpeper, Potter first asked Luke if he were representing either the BZA or Matthews, who was named as a respondent in Konick’s petition. Luke said he couldn’t, as county attorney, represent either, and was at the bar, “I suppose, as an advisor.” Potter asked him politely to return to the gallery.

Potter asked Matthews at what time she was served the subpoena to appear at the 1 p.m. hearing.

“At 10 o’clock this morning,” she said. And did she wish to have counsel represent her? “Well, yes, I think so,” she told the judge. Potter cited another code section requiring such respondents to be served at least three days in advance of a proceeding, and eventually suggested that he would take another recess while Konick and Matthews worked out how to proceed.

They, and BZA member Chris Bird, who was in attendance in the courtroom, agreed after a 15-minute discussion to cancel the special Tuesday BZA meeting and let the Sept. 28 meeting go ahead. When Potter returned, they told him so, and he issued an order simply to remove Konick’s petition from the day’s docket (without any stipulation, as Konick had argued for, that the special meeting would be canceled in return — although Matthews stood up and told the judge the meeting would indeed be canceled).

All of this cleared the way for the BZA to hear Harmony Manor’s appeal of Keyser’s decision, and to apparently hear during that session from neighbors and others — most of whom, if past hearings and letters to the county administrator are any guide, support Keyser’s decision to revoke the permit.

It begins with an argument

The supervisors marathon Wednesday session began with an argument about the agenda itself — Frazier objecting to several items on the closed-session agenda (including a Harmony Manor-related item suggested by Luke, who was apparently worried that Konick might sue the BZA or the county).

Primarily Frazier objected to the inclusion of a discussion of bond counsel — a discussion, partially to be held in closed session, with a consultant who’d be paid $3,500 to advise the supervisors on how the county might finance next year’s $360,000 tab for the emergency-communications system upgrade. The agenda item, Frazier said, represented a violation of the Freedom of Information Act because it appeared on the agenda after an informal, illegal poll of supervisors.

Luke maintained that the consultant agreed to appear at his own risk; the consultant, sitting in the front pew, confirmed this. Thus the informal poll related only to adding an agenda item “which I discussed with you at last month’s meeting,” Luke said, and not to taking any action involving spending funds.

Frazier — who has objected on many occasions over the last three months to allegedly improper actions taken by Luke, who is leaving the county attorney post in December — maintained afterwards that the action was illegal.

Hampton supervisor John Lesinski eventually moved that the board adopt the agenda, and the motion was seconded and passed, 4-1, with Frazier voting against adopting the agenda.

Zoning, Part II

The agenda moved fairly quickly to the public comment period, which lasted about 90 minutes but appeared to leave a significantly longer-lasting impression on the board.

Zoning was the topic addressed by many who spoke, several of them frequent posters on the Rappnet group email list, where the subject du jour for the last month has been the county and others’ “mistreatment” of Cooter’s in the Country — according to the“Dukes of Hazzard”-themed museum/gift shop/cafe co-owner, Ben Jones. Jones announced last month that the shop would close at the end of October because of what he characterized as unfairly enforced zoning and principally parking restrictions, including a threatened but never-sent “cease and desist” letter from the county administrator, all of which would make their continued stay on the corner of Old Hollow Road and U.S. 211 unworkable.

(The Rappahannock News learned last week, in a related development, that there has been a health department Office of Drinking Water-imposed boil order in effect at the Cooter’s property, which is owned by Dick McNear and family, since last September, an order that requires all water used for food preparation to be boiled. The order was issued because of bacteria levels in the well on the property, which a health department source said the McNears have been attempting since then to address, including with an ultraviolet system. Messages left for several members of the McNear family have not been returned.)

“It is a tragic shame that we are losing Cooter’s in the Country,” said Sharon Kilpatrick of Stonewall-Hawthorne district. “We can’t afford this. We have very few sources of income for the county.”

Referring to claims that Cooter’s should not be allowed to park cars on land zoned for agriculture, she added: “Yesterday I was at a cross country meet at Blue Rock Farm. There were lots of cars parked there by people who were specators, parents and so forth. I assume we were on land that was zoned agriculture . . . on Saturday I’m going to the Taste of Rappahannock, Cliff Miller’s place, where we will park hundreds of cars on agricultural land . . .”

Said Patrick Alther: “Cooter’s was a source of joy for many people. We’ve made ourselves look like a bunch of killjoys by doing this.”

“I would just like to echo and thank Sharon for describing the non-issue with parking cars in a field at Cooter’s,” said Christine Smith at Sperryville, “and also to say how sad I am to see this business go from my district.

“Our zoning administration process is a mess,” said Page Glennie of Amissville, reading from his customary prepared text. “Zoning ordinances that have been in place for over 30 years are not being followed. The people administering the system aren’t held accountable, and many aren’t familiar with the ordinances they are charged with enforcing. There are many potential conflicts of interest. The necessary planning and analysis has not been done. And when mistakes are made, the response seems to be to cover it up.”

In all, 16 people stood and spoke, most of them about zoning issues and not only about Cooter’s — which isn’t precisely a zoning issue, since no action was before any boards or commissions, though the planning commission took it up extemporaneously two months ago and recommended Keyser issue the “cease and desist” order to stop Cooter’s from holding events that would fill up the adjacent McNear-owned parking lot — or unused field.

To address complaints about zoning administration and enforcement, Keyser said Monday she’d sent the supervisors an email with a spreadsheet detailing the many areas where “a number of interpretations of the zoning ordinance are viewed differently now than in the past.”

“It’s up to the board of supervisors to decide how they want us to change the process,” said Keyser, who noted, as an example of an interpretation that appeared to be “viewed differently now,” that for the last three decades, during her predecessor John McCarthy’s time as county/zoning administrator, “construction” was presumed to refer to “new construction” — in which case a zoning permit, or sign-off by the zoning administrator, was required before any building permits were issued. Renovations of existing structures were generally required to conform to Virginia’s uniform building code, but no zoning permit was generally required.

Other issues addressed during the public comment period included Harmony Manor; construction underway of a large residential building on the site of the former B&B Parma on Christmas Tree Lane, the subject of a letter sent to the county two months ago and comments last Wednesday by residents of Clark Lane, which overlooks Christmas Tree Lane; and the county’s role in seeking broadband and cellular solutions.

Plus the issue of public comment itself.

Two persons suggested the board get a public-address system to allow (in the words of one) “us old folks to be able to hear what’s happening,” and others suggested that it allow public comment at the beginning (as it does now) as well as the end of its meetings — or even as each agenda item comes up.

Some suggested the board have all its meetings in the evening.

Christine Smith, in fact, said she couldn’t stay (because she had to get back to work) for the board’s scheduled discussion of a broadband committee — noting that she opposed the county taking any action in the area of broadband, instead “letting these utilities develop their own infrastructure.” She added that the board should have all of its meetings at 7 p.m. so that working people can be heard.

At 7 p.m., people were heard

At the 7 p.m. session, some 25 people arrived and, except for three of those present, protested vigorously any further action toward a noise ordinance — in a public session deliberately scheduled at the suggestion of Stonewall-Hawthorne supervisor Chris Parrish, in response to requests by several constituents that the county regulate noise.

Space does not permit us to repeat all the comments here, but the words of one — Brandi Day, of Wakefield district — may have summarized best all those expressed.

“I live in one of those few residential streets just outside Flint Hill, and I have had to deal with probably all of those sounds mentioned by others tonight [and listed on a video screen at the front of the room, which included dogs, guns, animals and loud parties], in the short seven years I’ve lived in the county,” said Day. “And . . . I don’t care. I just deal with it. And that’s how you get along. I would never think to waste the sheriff’s office’s time to have them come out because my neighbor’s dog barks incessantly for hours, or another neighbor decides to target practice, while I’m trying to take a nap on Saturday . . . These are things that happen, and you roll with it.

“There are rude people, I’m sorry to say but an ordinance is not going to stop them from being rude, from being stupid, or dangerous, or harmful to you, if they are so inclined. That’s just a fact of life. I would just like to bring you back to the practical matter of this, and say — who in the county government is sitting around right now thinking, ‘Wow, I should have a new project, because I just don’t know what to do with my time’?

“No. My understanding is we really need more time and energy to focus on the big picture. We need a solution to the fire and EMT problem. We need a solution to the broadband problem. We need a solution to the cell phone problem. And we need some zoning and development issues addressed,” she said, pointing to the video screen’s categorized list of 100 noise complaints received last year. “We do not need to address the 10 loud parties that were reported to the sheriff last year.”

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