City Council

Public Hearing 08/23/22 HON. MARY KATHERINE GREENLAW, MAYOR CITY OF FREDERICKSBURG, VIRGINIA HON. CHARLIE L. FRYE, JR., VICE -MAYOR, WARD FOUR HON. KERRY P. DEVINE, AT-LARGE CITY COUNCIL HON. MATTHEW J. KELLY, AT-LARGE HON. JASON N. GRAHAM, WARD ONE HON. JONATHAN A. GERLACH, WARD TWO HON. DR. TIMOTHY P. DUFFY, WARD THREE Council Chambers, 715 Princess Anne Street Fredericksburg, Virginia 22401 August 23, 2022 The Council of the City of Fredericksburg, Virginia, held a public hearing on Tuesday, August 23, 2022, beginning at 7:48 p.m. in the Council Chambers of City Hall. City Council Present. Mayor Mary Katherine Greenlaw. Vice-Mayor Charlie L. Frye, Jr., Council members Kerry P. Devine, Dr. Timothy P. Duffy, Jonathan A. Gerlach, Jason N. Graham, and Matthew J. Kelly. Others Present. City Manager Timothy J. Baroody, Assistant City Manager Mark Whitley, Assistant City Manager David Brown, City Attorney Kathleen Dooley, Director of Planning and Building Services Charles Johnston, Senior Planner Michael Craig, Historic Resources Planner Kate Schwartz, Budget Analyst Donna Leahy and Clerk of Council Tonya B. Lacey. Notice of Public Hearings (D22-296 thru D22-297). The Clerk read the notice of the public hearings as they appeared in the local newspaper, the purpose being to solicit citizen input. Ordinance 22-17, First Read Approved, Amending City Code §72- 33.2 to Restate and Confirm the Application of the 10% Rule that Applies to Residential Developments in the Planned Development-Commercial 21459 Public Hearing 08/23/22 District (D22-296). No speakers. After staff presentation and brief discussion Councilor Devine made a motion to approve Ordinance 22-17, on first read, amending City Code §72-33.2 to restate and confirm the application of the 10% rule that applies to Residential Developments in the Planned Development-Commercial District; motion was seconded by Councilor Graham. Councilor Kelly made a substitute motion to defer action so that the Council could discuss their plans and policies of the area before this goes through litigation. There being no second, the substitute motion failed. The motion passed by the following recorded votes. Ayes (6). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach and Graham. Nays (1). Councilor Kelly. Ordinance 22-18, First Read Approved, Amending the Unified Development Ordinance to Revise the Planned Development – Mixed Use Zoning District Regulations (D22-297). No speakers. After staff presentation and some discussion Councilor Graham made a motion to approve Ordinance 22-18, on first read, amending the Unified Development Ordinance to revise the Planned Development – Mixed Use Zoning District regulations with an amendment that the density maximum by-right for a multi-family or upper story dwellings over nonresidential is changed from 30 units per acre to no maximum to allow for a better mix of housing stock to suit the market needs; motion was seconded by Councilor Gerlach for discussion. Senior Planner Craig said the maximum for the vertical mixed use or multi-family is 30 units per acre and that functions as a guideline because there was a provision that 21460 Public Hearing 08/23/22 Council could exceed that on a case by case basis. He said this was a guideline as they use to take in projects and making evaluations, but if the Council would prefer to remove that guideline and let the form dictate they would do that. Councilor Gerlach asked how section b would work in practice (b) Notwithstanding any other provisions of this section the City Council may approve an increase in density levels upon finding such increase achieves the purpose and intent of the district. Mr. Craig explained that the Germania Mills project was a good example where the owner had a one-acre site and he had a vision for approximately 70 units on the property and through the review process the density of the parcel was approximately 70 units per acre there were a lot of learning curves and ultimately it was approved for approximately 70 units per acre. Councilor Gerlach asked if the ordinance was left the way it was recommended would it be a disincentive for efficiencies, studio apartments, junior apartments above commercial ground level knowing they would have to come to the Council for special approval. Mr. Craig explained that the projects would generally come with a Generalized Development Plan (GDP) with the total unit count and the unit count would be used to determine the impact on public facilities and traffic and that will be the upper limit of what could be developed. He was not sure about it being a disincentive but the one area of the City that he could think of was the T-6 transect area (Central Square) of Central Park was intended to be fairly intense. This area is at the level Councilor Graham was describing. Councilor Kelly said while he understands the direction Councilor Graham wants to go when it comes to large project and there impacts it was imperative that the City 21461 Public Hearing 08/23/22 maintain some oversight on how it proceeds. He suggested voting on the ordinance as staff has presented it to get it moving and discuss it more at a later date when more discussion could be had. Councilor Devine agreed that she was comfortable with the language presented because it provides the Council the opportunity to consider projects of different sizes but she asked how a junior or studio apartment would play into the Capital Impact Study because they have no bedrooms. Mr. Craig explained that multi-family was the one housing type that they did not have bedroom data for and it was the one used on an average basis. Councilor Graham addressed Councilor Kelly saying he brought this change up at the last meeting so that this would not be the first time the Council would be hearing about his suggested changes. He said his other reason for this change is the ability to provide housing at market rate to allow for a wider range of social economic status. The concern was that the current language may deter developers because of the process. He said he would be like to get feedback from the development community. Councilor Duffy said he would like to know more about what has worked in other communities, but he was open to diversity of housing. Councilor Gerlach agreed and said he would like to look at the changes in the future but no need to rush by including them in the current ordinance. Councilor Graham made an amended motion to pass the Ordinance on first read as submitted; motion was seconded by Councilor Gerlach. 21462 Public Hearing 08/23/22 Council had a brief discussion on increased density for junior or studio apartments and Ms. Dooley said she believed the standard was to provide a density bonus in exchange for affordable units. Mr. Johnston clarified that the State Code does not specify unit type or size it only talks about the affordability component to rental and sales rates. It only gives a density bonus based on the underlying zoning and if there is no maximum, there is no bonus to be granted and it specifies a specific percentage that seventeen percent of all the units are set aside to be affordable without saying whether they are efficiencies or three bedrooms. The market usually dictates that they are the smaller units. The motion passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach, Graham and Kelly. Nays (0). Adjourned. There being no more speakers to come before the Council at this time, Mayor Greenlaw declared the hearing officially adjourned at 8:49 p.m. Mary Katherine Greenlaw Mary Katherine Greenlaw, Mayor Tonya B. Lacey Tonya B. Lacey, Clerk of Council, MMC 21463 Public Hearing 08/23/22 [This page intentionally left blank] 21464 Regular Session 08/23/22 HON. MARY KATHERINE GREENLAW, MAYOR CITY OF FREDERICKSBURG, VIRGINIA HON. CHARLIE L. FRYE, JR., VICE -MAYOR, WARD FOUR HON. KERRY P. DEVINE, AT-LARGE CITY COUNCIL HON. MATTHEW J. KELLY, AT-LARGE HON. JASON N. GRAHAM, WARD ONE HON. JONATHAN A. GERLACH, WARD TWO HON. DR. TIMOTHY P. DUFFY, WARD THREE Council Chambers, 715 Princess Anne Street Fredericksburg, Virginia 22401 August 23, 2022 The Council of the City of Fredericksburg, Virginia, held a regular session on Tuesday, August 23, 2022, beginning at 7:30 p.m. in the Council Chambers of City Hall. City Council Present. Mayor Mary Katherine Greenlaw. Vice-Mayor Charlie L. Frye, Jr., Council members Kerry P. Devine, Dr. Timothy P. Duffy, Jonathan A. Gerlach, Jason N. Graham, and Matthew J. Kelly. Others Present. City Manager Timothy J. Baroody, Assistant City Manager Mark Whitley, Assistant City Manager David Brown, City Attorney Kathleen Dooley, Director of Planning and Building Services Charles Johnston, Senior Planner Michael Craig, Historic Resources Planner Kate Schwartz, Budget Analyst Donna Leahy and Clerk of Council Tonya B. Lacey. Opening Prayer and Pledge of Allegiance. Council was led in prayer by Vice-Mayor Charlie L. Frye, Jr. followed by the Pledge of Allegiance led by Councilor Jason N. Graham. Officer Recognized. Mayor Greenlaw recognized the presence of Gregory Baugher, at this evening’s meeting. 21465 Regular Session 08/23/22 Proclamation Overdose Awareness Day 2022 (D22-288). Mayor Greenlaw presented a proclamation to Christen Gallik and Jill Henderson proclaiming August 31, 2022 as Overdose Awareness Day in the City of Fredericksburg. Proclamation National Suicide Prevention Week - September 4th – September 10, 2022 (D22-289). Mayor Greenlaw presented a proclamation to Shannon Sullivan, Angela Shawaryn, and Patricia Copeland recognizing September 4 through September 10, 2022 as National Suicide Prevention Week and September 10 as National Prevention Day. Community Garden. Mr. Eric Bonds of the University of Mary Washington thanked the City for making the new community garden at Snowden Park possible. He said he worked with Michael Ward in Parks and Recreation, who drew out the design for the garden. Mr. Bonds said he submitted a grant application to the Community Foundation and they were awarded the grant. He said with inflation they exceeded costs and City Manager Baroody found a donor, who covered the additional expenses. He said with the help of volunteers, University of Mary Washington student volunteers and the City, the garden beds were completed and all the garden beds were being used and beginning to plant fall crops. He spoke of how important this new garden was to the community and all the benefits related to the community garden. It is located in an area where a large number of residents live in apartments and cannot grow gardens of their own. 21466 Regular Session 08/23/22 The City has allowed growing of the garden free and Mr. Bonds said they were grateful for that. He said they have formed a leadership team to manage the garden. He spoke of the importance of fundraising this year. He said he would like to have the students at Walker-Grant grow the starter plants. Consent Agenda Accepted for Transmittal as Recommended (D22- 290 thru D22-295). Councilor Duffy disclosed that he is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests on Item 5C - Amending the Fiscal Year 2022 Budget for Fredericksburg Public Schools to Appropriate Funds for Retention Bonuses. Vice-Mayor Frye disclosed that his wife is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests on item 5C. Councilor Kelly moved approval of the City Manager’s consent agenda; motion was seconded by Councilor Devine and passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach, Graham and Kelly. Nays (0). • Resolution 22-49, Ordinance 22-14, Second Read, Updating the City Code Drug Blight Provisions to Reflect Changes in State Law (D22-290). • Resolution 22-54, Second Read, Amending the Fiscal Year 2023 Budget to Appropriate Funds in the Fredericksburg Regional Transit Fund and Fredericksburg Regional Transit Capital Fund for the Purchase of Land (D22- 291). 21467 Regular Session 08/23/22 • Resolution 22-55, Second Read, Amending the Fiscal Year 2022 Budget for Fredericksburg Public Schools to Appropriate Funds for Retention Bonuses (D22-292 thru D22-294). • Resolution 22-56, Initiating an Amendment to the Unified Development Ordinance to Exempt Certain Boundary Line Adjustments from the Subdivision Regulations, as Required by Virginia Code Amendments (D22- 295). Public Hearing (D22-296 thru D22-297). The regular session was recessed in order to conduct scheduled public hearings and immediately reconvened upon their conclusion. Citizen Comment. The following comments were given and/or submitted to be read during the citizen comment portion of this evening’s meeting. Ed Sandtner, 132 Caroline Street, addressed the issue of the demolition of the property at 1107 Princess Anne Street. He stated that the ARB serves a very important function for the City but he said they have made some errors in judgement over the years and those errors are evident when walking around the Historic District. He stated that once the mistakes are made there was no undoing them because the fabric has changed. Mr. Sandtner understood that the renovations to the Dick house were expensive but he said the Council has the opportunity to stop one more loss of what the City says it values. He said the most historic city needed to live up to its name. 21468 Regular Session 08/23/22 David James, 213 Princess Anne Street, President of Historic Fredericksburg Foundation Inc. He said the Council needed to enforce its Unified Development Ordinance (UDO) fairly and across the board. He asked the Council if they were up to the task of enforcing the code. He said the only way to ensure demolition is used for a last resort option for historic structures in poor condition, is to preserve housing stock by preventing demolition by neglect, by implementing disincentives and penalties for property owners who willfully and knowingly engage in demolition by neglect, by ensuring demolition will not be a product of willful neglect or knowing strategy intended to narrow options to either demolition or unreasonable expenditure of money by enforcing the ordinance. Mr. James said HFFI feels the ARB did not follow the City Code 72-23 and it was setting a dangerous precedence for the future, if it is allowed to stand. He suggested that a structural engineer should have been hired to confirm the City’s structural engineer findings. He said they would have had no qualms if the demolition had been followed per the ordinance. Rebecca Light (D22-298). Spoke in opposition of the demolition of the structure at 1107 Princess Anne Street. She defined standing as a person who is an aggrieved party with direct, substantial immediate and pecuniary interest in the subject matter. She also asked the Council to reverse the ARB’s decision. See D22-298 for more information. Sarah Masters (D22-299). 1503 Palmyra Avenue, Richmond, spoke in support of the denial for the request to demolish the structure at 1107 Princess Anne Street (204 21469 Regular Session 08/23/22 Lewis Street). She stated this would set a precedence for other historic properties in Fredericksburg. Ms. Master said it was inexcusable when an owner fails to preserve a structure and claims its beyond repair. As a member of the Masters family she said it was sad to see the whole of 1107 removed from the façade and the addition constructed on the west side of the façade. She asked the Council not to allow further destruction to the structure. See D22-299 for more information. Betsy Masters (D22-300), 220 East Benezet Street, Philadelphia, PA, objected to the issuance of a demolition permit for the accessory structure at 1107 Princess Anne Street and she encouraged the Council to consider withdrawing the permit. She said the ARB voted to grant a demolition permit in spite of the recommendation by the Historic Resources Planner against granting the permit. She stated that Kate Schwartz said in her opinion, the Certificate of Appropriateness clearly demonstrates that demolition is not appropriate. In five of the categories, the demolition is deemed “Does Not Satisfy”. The other five categories are deemed “Not Applicable” in the Secretary of Interior Standard. There are zero categories in which the application was deemed, “Satisfies.” Ms. Masters also state that there was no hardship cited by the owner. See D22-300 for more information. Council Agenda Presented. The following items were presented to Council for discussion. 8A. Due Diligence – Councilor Gerlach 8B. Accessory Dwelling Units (ADU) – Councilor Graham 8C. Project Labor Agreement – Vice-Mayor Frye 21470 Regular Session 08/23/22 Due Diligence (D22-301 thru D22-302). Councilor Duffy disclosed that he is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests. Vice-Mayor Frye disclosed that his wife is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests. Councilor Gerlach read a letter from a six grade student that was submitted and he is a student at Walker Grant Middle School. He spoke of his excitement to attend the new middle school. Councilor Gerlach reported that construction inflation seemed to have peaked and may be coming down. He said the inflation costs that were reported by First Choice were from March 2022 and on August 11 the production cost of steel and other nonresidential building material had been dropping since March. He was hopeful it would continue to drop. Councilor Gerlach stated that after the last joint meeting with the School Board he had more questions than he did answers. He wanted to know the true cost per square foot. He said the Council needed to fully understand the estimated cost before voting on the comprehensive agreement in September. Councilor Gerlach said he was advocating for a quality school at a reasonable price that the City could justify. He asked the Council to consider tasking the City Manager with obtaining an independent review of the $77 million cost estimate by a construction cost estimator who has experience with school buildings. 21471 Regular Session 08/23/22 Secondly, he said the review could be apples to apples comparison with our middle school with other comparable schools that are being built in Virginia. He noted there would have to be an inflation adjustment. Finally, he said he could only support an independent review if it would not delay the Council’s vote on the Comprehensive Agreement. He said there could be two outcomes, the first being the validation of the $77 million or a lower estimate allowing for the negotiation of a lower price. Mayor asked staff if it would be possible for a cost estimator to review the work that has been done in a rapid fashion and Mr. Whitley felt staff could get an estimate on the work that had been done in a timely fashion but he said a ground up estimation could not be done on such short notice. Councilor Devine agreed this was a good path to get a little more information before the vote on the Comprehensive Agreement. She recognized that the Council would not have all the information it needed before the vote on the Comprehensive Agreement and she said time was of the essence. Councilor Frye asked about the cost of the school and what happens if the numbers originally presented were different from the new numbers. Mr. Whitley explained the PPEA procurement process envisions a two stage contract number. The first stage is called the Contract Cost Limit (CCL) which is based on the design as it is currently and the contract is signed based on that which is the Comprehensive Agreement. As the design advances, the design build team gets closer to 90 the percent 21472 Regular Session 08/23/22 plans they would generate a Guaranteed Maximum Price (GMP) and this cost could reduce some. He stated that this could benefit the schools. Councilor Graham said he supported the extra due diligence with the caveat that it does not change the current schedule for the school. Councilor Duffy was also in support of getting an independent review and he also stated that he wanted to stay on schedule. He said it was important to build a quality school. Councilor Kelly was also in agreement with moving forward with an independent review of the costs. He asked that staff provide answers to the questions he had asked before the Council has to vote on the agreement. Council was in agreement with having an independent cost estimator review the project and give their input on the costs. Accessory Dwelling Units (ADU). Councilor Graham referenced a letter that the Fredericksburg Area Association of Realtors sent in support of ADU’s. He said this letter was encouraging and he looked forward to this coming forward to the Council in the fall. Project Labor Agreement (D22-302.1). Vice-Mayor Frye disclosed that his wife is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests Vice-Mayor Frye presented a project labor agreement which provides employment to the local residents. He explained that when large projects come many times workers are bused in to do the work, but with a project labor agreement there would be an opportunity to invest taxpayer’s money into the local residents. This will provide on the job training and would give a person the opportunity to become certified 21473 Regular Session 08/23/22 in a profession. Mr. Frye reported that he presented this information to the School Board and someone from the Northern Virginia Labor Union would be coming to the next School Board meeting to explain the program. Adoption of Minutes (D22-303). Councilor Graham moved approval of the July 12, 2022 Work Session and the August 9, 2022 Public Hearing and Regular Session minutes; motion was seconded by Councilor Kelly and passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach, Graham and Kelly. Nays (0). Resolution 22-57, Approved, Adopting the Capital Impacts Study for Schools and Fire Capital Impacts of New Residential Developments (D22- 304 thru D22-307). After a brief staff presentation Councilor Kelly made a motion to approve Resolution 22-57, adopting the Capital Impacts Study for schools and fire capital impacts of new residential developments; motion was seconded by Councilor Gerlach. Councilor Duffy disclosed that he is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests. Vice-Mayor Frye disclosed that his wife is employed by the Fredericksburg Schools but he could participate fairly, objectively and in the public interests. Motion passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach, Graham and Kelly. Nays (0). 21474 Regular Session 08/23/22 Resolution 22-58, Approved, Dismissing HFFI’s Appeal of the Certificate of Appropriateness for Demolition of an Accessory Structure at 1107 Princess Anne Street Due to Lack of Legal Authority to Appeal the Decision (D22-308 thru D22-311). Mayor Greenlaw reviewed the process of the appeal. City Attorney Dooley gave a background explaining that the City’s Historic Preservation Regulations require a landowner to obtain a Certificate of Appropriateness (COA) from the Architectural Review Board (ARB) or on appeal from the City Council before demolishing a structure in the historic preservation district. The appeals process allows for any person aggrieved by the ARB’s decision, which typically are filled by the landowner or applicant. Occasionally, a third party will appeal a decision and in those cases she explained that the City Council must determine if the third party is a person aggrieved by the ARB’s decision, if so, the party has standing to file and pursue the appeal. Ms. Dooley defined for the Council what standing is, and stated that it is a person with the right to drive the process, not merely participate by commenting at a public hearing, but to force another step in the review process. The standing determination is striking the right balance procedurally with any topic of interest. A person’s legal rights affected by a decision has the right to appeal a decision and a person who is vitally interested in the decision has the right to provide input to the decision maker. Ms. Dooley explained that the idea is to strike the right balance and provide fairness to each party according to their interest. 21475 Regular Session 08/23/22 Ms. Dooley noted that there were many Virginia cases that address standing of a non-applicant to appeal a land use decision. The rules for standing in Virginia are fairly clear, the non-applicant party must pass a two-step qualification test: the non-applicant must own property in proximity to the subject property and the decision appeal must impose some particularized harm to a personal or property right or impose a special burden or obligation on the non-applicant that is different from that suffered by the public generally. Historic Preservation Planner Schwartz presented a PowerPoint and she began stating that the first step in considering HFFI’s standing would be to establish the ARB’s action in which they acted to approve a COA for the demolition of an accessory structure (detached garage) at 1107 Princess Anne Street. The ARB found that the request for demolition met one of the seven criteria used to evaluate such requests. This was the criteria regarding the condition and structural integrity of the building or structure. Ms. Schwartz’s noted there were two conditions placed on the approval: the structure will be documented in accordance with Historic American Buildings Survey (HABS) level III documentation as defined in Federal Register vol. 68 no. 139 before release of the demolition permit and digital photography meeting the Virginia Department of Historic Resources guideline and a Secretary of the Interior, qualified architectural historian or archaeologist must be present during the demolition and documentation must occur. 21476 Regular Session 08/23/22 Ms. Schwartz discussed the structure location in proximity of an HFFI property the structure is approximately 46 feet from the Lewis store located at 1200 Caroline Street. In the presentation she reviewed additional context for the decision on standing she noted that the rear wall of the structure was visible from the Lewis store but the entry doors were located on the south and west walls. Ms. Schwartz added that Council may want to consider the relationship of the two properties and decide if the structure would have a direct and negative impact on the value of the Lewis Store. She said the Lewis Store was listed in the National Register of Historic Place and the aspects of the setting was also called out in the Department of Historic Resources records including its location adjacent to a historic green space and proximity to buildings from its period of significance which the Charles Dick house is from that time period, but not necessarily the accessory structure. Ms. Schwartz also spoke on the Historic District property values and the studies HFFI cited in its appeal but she said they did not demonstrate how the removal of an accessory structure would have an impact on the assessed or market value of the Lewis Store. She did not think the accessory structure and the Lewis Store values were comparable therefore, she did not feel HFFI met the test for standing in this case. Clark Leming, Attorney representing HFFI, stated a standing was the latest rally cry for all local jurisdictions because in addition to the equitable principal that it seeks to establish, it is also a way to narrow the interest to come before a governing body and hold third parties at bay but he said the prudence of standing go back a few years. Mr. Leming spoke of several standing cases that he was aware of to include a case with the 21477 Regular Session 08/23/22 Friends of the Rappahannock which several cases have been appealed to the Supreme Court. He added that in all of the cases they were not asked to provide evidence of standing but the Council was being asked to provided just that. Mr. Leming stated that the Council should be concerned with the precedence the ARB was setting with the application of the guidelines and criteria. Mr. Leming said that in his letter he stated that HFFI had a direct, substantial, immediate, and pecuniary interest in the preservation of the structure because it will have a negative impact on the value of HFFI’s property located approximately 46 feet away. He said the location of a property within a historical district enhances the value of that property. Mr. Leming cited several studies that indicated that there was an independent bump in value for each historical structure within in a certain distance of a structure. Mr. Leming provided the studies to the Council, see D22-310. Mr. Leming hired an expert, Rob Rochon, a broker in the area who provided an opinion letter (D22-311) and Mr. Leming reviewed his opinions as follows: historic district designation has a significant positive impact on property values; Historic district properties that are adjacent to a historic structure enjoy a more substantial increase in property values than other historic district properties generally; there is a compelling inference that the converse is also true, the demolition or removal of historical structures has a district negative effect on sales prices and the values of adjacent historic district properties and a failure by the locality to enforce historic district regulations diminishes the positive pecuniary enhancement in value created by a property’s location within a historic district. 21478 Regular Session 08/23/22 Mr. Leming stated that in all the cases he shared they were based on allegations and not on evidentiary hearings. He asked the council to ask how they should evaluate, what is the standard and what happens to the rest of the case. He said HFFI was in a unique position because of its location and the pecuniary damage to the value enhancement to other structures when historic structures are demolished. Councilor Graham stated that based on what he read in the Noonan study on Historic Landmarks, he was not inclined to agree with the Mr. Leming’s argument. Mr. Leming added there are variables that go one way and others that go another but they rely on the overall analysis or findings of the studies. City Attorney Dooley clarified that the garage structure was not a landmark and the Lewis Store is a landmark. Councilor Graham said the first question is whether the garage was a landmark and if it is not he stated that standing was not up for debate. Councilor Gerlach explained that based on Mr. Leming argument any property within proximity of an ARB decision could have standing, but he said he did not see a particularized harm in this case. Mr. Leming said the particularized harm turns on the third point of Mr. Rochon’s letter, given that the closer you are to the subject property and the value of the subject property the bigger the increase in the value and he stated that Mr. Rochon believes the inverse was also true that if there was a bump in an adjacent historic structure and the historic structure goes away so does the increase in the value of the other structure. Councilor Gerlach said he did not think there was a strong enough case and he still did not see a particularized harm. 21479 Regular Session 08/23/22 Dr. Brian McDermott, owner of 1107 Princess Anne Street stated that he purchased the property in 2017, which had set on and off the market because of its condition for 15 years or so. He said that if he had not purchased the property it may have been a bigger case of demolition by neglect. The property needed a lot of work and because of the expensive nature of the project, he did not want to spend any more money on the property. This changed in 2020, the wall failed and he and a neighbor came together to rebuild the wall and the failure of the wall has continued down the length of the wall behind the subject structure. Dr. McDermott said he has had scientists, engineers and city engineers look at the property and it was getting worse. He said the concrete floors were unreinforced and it has failed and it is accelerating. There is no rebar in the concrete and he was worried about people getting hurt. He said the ARB did its due diligence. He said there was nothing to salvage it is a garage that has served its purpose. Ms. Karen Irvin, chair if the ARB, said like the Council, the ARB encourages public input and submission of comments and HFFI made a presentation at the May 9 meeting and further submitted written comments at the June 13 meeting. The ARB recognizes and respects HFFI on its knowledge of the history of Fredericksburg and its buildings and for their past contributions on preservation, but that does not mean they always agree on their conclusions. The information submitted did not really pertain to the issue of standing and for that they would rely on the City Attorney. Councilor Kelly expressed that the ultimate goal was preservation and the preservation of the downtown. He said you cannot make judgements solely on the text 21480 Regular Session 08/23/22 of the law, it must meet the shared goals of the community. The overriding decision is whether the goals of historic preservation are being met. He stated that laws can be both beneficial and detrimental to a community. He said there was an overriding issue that goes beyond the legal interpretation of the law. Councilor Kelly said thankfully Fredericksburg said it wanted demolition to historic structures to be last resort. Councilor Kelly said there were legitimate issues regarding the handling of this demolition and it deserved an appeal hearing because of the way the case was handled by the ARB. In order for the City to meet its goals as a proven leader in historic preservation the City must ensure discussions are had on the proper process of handling demolitions and not deter from that process. Vice-Mayor Frye pointed out that the exact opposite happened with the removal of the Historic Masonic Lodge. He said it was the Council who removed the Masonic Lodge and he wanted to keep it. He feels it was the City who set the standard and opened the door for this type of conversation. He said he thought the applicant explained the issues and he tried to save the garage. Councilor Duffy said he was not thrilled with the idea of voting on technicalities of an issue. He said standing was not a technicality but he worries about the public process of dealing with historical preservation that can be damaged by the ARB not being able to function. He said it was obvious preservation was the applicants goal because of what he had done to the house. Councilor Duffy said issue like these are hard to overcome. 21481 Regular Session 08/23/22 Suspend the Rules. Councilor Kelly moved to suspend the rules in order to meet past 11:00 p.m.; motion was seconded by Councilor Graham and passed by the following recorded votes. Ayes (7). Councilors Greenlaw, Frye, Devine, Duffy, Gerlach, Graham and Kelly. Nays (0). Councilor Kelly made a motion saying HFFI has standing in this case; motion was seconded by Councilor Duffy. Councilor Gerlach said he has spent hours reviewing this and he does not believe the applicant has standing. He agreed the Council should spend time amending the demolition ordinance but this was not the time to do so. He said a showing of particularize harm that is different from the community in general had not been shown and he would not support the motion. Councilor Gerlach made a substitute motion to dismiss HFFI’s appeal of the Certificate of Appropriateness for demolition of an accessory structure at 1107 Princess Anne Street due to lack of legal authority to appeal the decision; motion was seconded by Councilor Devine. City Attorney Dooley said the bullet points in the resolution do not capture the entire argument that HFFI made and she asked that that bullet points be stricken and say that “HFFI was aggrieved by the ARB’s decision granting a Certificate of Appropriateness on the grounds stated in its letter of appeal. Councilor Gerlach accepted the amendment and Councilor Devine as the seconder also accepted the amendment. 21482 Regular Session 08/23/22 The motion passed by the following recorded votes. Ayes (5). Councilors Greenlaw, Frye, Devine, Gerlach and Graham. Nays (2). Councilors Duffy and Kelly. Councilor Gerlach made a motion to approve Resolution 22-58, dismissing HFFI’s appeal of the Certificate of Appropriateness for demolition of an accessory structure at 1107 Princess Anne Street due to lack of legal authority to appeal the decision striking the bullet points in the resolution to say that “HFFI was aggrieved by the ARB’s decision granting a Certificate of Appropriateness on the grounds stated in its letter of appeal; motion was seconded by Councilor Devine and passed by the following recorded votes. Ayes (5). Councilors Greenlaw, Frye, Devine, Gerlach and Graham. Nays (2). Councilors Duffy and Kelly. City Manager’s Report and Council Calendar (D22-312 thru D22- 313). City Manager Baroody directed the Council’s attention to the Manager’s Update: Around the Town Free Trolley Service Expands to UMW, Rappahannock Juvenile Center Update, New Speed Limit in Downtown Business District, Traffic Safety Initiative, Are You Subscribed to Fredericksburg Alerts, Abundant Parking Downtown, COVID-19 Vaccinations, Board and Commission Openings, The Parks, Recreation and Events Fall Catalog, Summer Programs and Fred Focus. Closed Meeting Approved (D22-314). Before the start of the closed meeting Councilor Kelly stated that he would not participate in the closed session because of the lack of process in the way the evaluations were handled. Upon a motion Councilor Graham, moved approval to convene in closed session under Va. Code 2.2-3711(A)(1) to discuss the performance of specific appointees of the 21483 Regular Session 08/23/22 City Council, specifically, the Clerk of Council, City Attorney, and City Manager and Section 2.2-3711 A. (3) for the discussion of the disposition of publicly held real property, namely, a proposed boundary line adjustment and sale of approximately 370 square feet of land between the dog park and the property line of GPIN 7779-86-4562, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body; motion was seconded by Councilor Gerlach and passed by the following recorded votes. Ayes (6) Councilors Greenlaw, Frye, Devine, Duffy, Gerlach and Graham. Nays (0). Return to Open Meeting Approved. Upon the motion of Councilor Gerlach; seconded by Councilor Duffy and passed by the following recorded votes, Council approved a return to an open meeting. Ayes (6) Councilors Greenlaw, Frye, Devine, Duffy, Gerlach and Graham. Nays (0). Resolution 22-59, Approved, Certifying Closed Meeting. Upon the motion Councilor Gerlach, approved Resolution 22-59 certifying the closed meeting; seconded by Councilor Duffy and passed by the following recorded votes. Ayes (6) Councilors Greenlaw, Frye, Devine, Duffy, Gerlach and Graham. Nays (0). Adjournment. There being no further business to come before the Council at this time, Mayor Greenlaw declared the meeting officially adjourned at 12:17 a.m. Mary Katherine Greenlaw Mary Katherine Greenlaw, Mayor Tonya B. Lacey Tonya B. Lacey, Clerk of Council 21484 Regular Session 08/23/22 21485 Regular Session 08/23/22 [This page intentionally left blank] 21486