002-05RESOLUTION AUTHORIZING ADOPTION OF JOINT AGREEMENT FOR
ADMINISTRATION OF PROFFERS
WHEREAS, the Town of Middletown and the County of Frederick have enjoyed a
cooperative relationship over many years; and
WHEREAS, both the Town of Middletown and the County of Frederick recognize that
development within the corporate boundaries of Middletown creates additional service
obligations for the County of Frederick; and
WHEREAS, the citizens of the Town of Middletown utilize many services provided by
the County of Frederick, including but not limited to, public schools, recreation facilities, fire
protection assistance and assistance in police protection; and
WHEREAS, in recognition of the historically cooperative relationship between the Town
of Middletown and Frederick County, the Town Council adopted during its June 13, 2005
meeting an ordinance pursuant to Section 15.2-1300 which authorizes the Town of Middletown
to collect proffers on behalf of Frederick County; and
WHEREAS, in order to permit Middletown to begin collecting proffers for Frederick
County, a Joint Agreement for Administration of Proffers collected must be entered into by the
Town of Middletown and the County of Frederick; and
WHEREAS, the proposed Joint Agreement for Administration of Proffers between the
Town of Middletown and the County of Frederick is attached to this Resolution as Exhibit 1 and
made a part hereof;
NOW, THEREFORE BE IT RESOLVED by the Board of Supervisors of Frederick
County, in a meeting held on the 10th day of August , 2005;
I. The Board of Supervisors of Frederick County, by this Resolution, expresses its intent to
enter into the Joint Agreement for Administration of Proffers with the Town of Middletown; said
Agreement being attached to this Resolution as Exhibit 1.
2. By this Resolution, the Frederick County Board of Supervisors approve this Joint
Agreement for Administration of Proffers and authorize their Chairman, Richard C. Shickle to
execute two originals of the Joint Agreement and return one original to the Town of Middletown
to be placed on record in the Town Clerk's Office.
IN WITNESS WHEREOF, the Frederick County Board of Supervisors have caused this
Resolution to be duly executed on its behalf by its Chairman and attested by its Clerk.
Chairman, Richard Shickle
ATTEST:
Clerk he oard of Su rvisors
Board Resolution No.: 002-05
EXHIBIT 1
JOINT AGREEMENT FOR ADMINISTRATION OF PROFFERS
THIS JOINT AGREEMENT, dated this day of 2005, by and
between the TOWN OF MIDDLETOWN, VIRGINIA ("Town"), and the COUNTY OF
FREDERICK, VIRGINIA, ("County").
WHEREAS, the Town has adopted conditional zoning provisions in its zoning ordinance;
and
WHEREAS, under such conditional zoning provisions the Town may accept proffered
conditions in zoning actions taken by the Town, including but not limited to, accepting proffers
for the benefit of the County; and
WHEREAS, pursuant to Virginia Code Section 15.2-1300 the Town and County desire to
`~ enter into this Joint Agreement to provide for the Town to accept proffers for the benefit of the
County, for the enforcement and administration of proffers accepted by the Town for the benefit
of the County and for the County to provide data to the Town for the Town's use in conditional
zonings.
NOW, THEREFORE, the Town and the County do hereby jointly agree as follows:
1. The duration of this Joint Agreement shall be twenty (20) years, and may be
renewed by ordinance adopted by both jurisdictions.
2. The purpose of this Joint Agreement is to provide for the Town to accept proffers
for the benefit of the County and to provide for the enforcement and administration of proffers
accepted by the Town for the benefit of the County.
3. The parties do not anticipate additional costs related to this joint agreement.
4. Upon the filing with the Town of an application for a rezoning, the Town shall
provide to the County a copy of the rezoning application.
5. The County may provide the Town with information concerning the County's
calculation of the net cost to the County of public facilities and services which would be
generated by the proposed rezoning, and the fiscal impact to the County of the proposed
rezoning, based on the County's fiscal impact model which information the Town may use in
any discussions concerning proffer offers in conjunction with the proposed rezoning.
6. The Town may accept proffers for the benefit of the County.
7. Administration of Proffers
A. Proffers accepted by the Town for the benefit of the County, both
monetary and non-monetary, shall be received and administered by the Town, subject to the
terms of this Agreement.
B. Cash proffers for the benefit of the County for facilities to be provided by
the County shall be paid by the Town to the County as such proffer payments are made.
8. Enforcement of Proffers
A. It is the intent of the Town and County that the cost of enforcement of
proffers, to include, without limitation, attorney fees, court costs, and expert witness fees, shall
be borne by the jurisdiction benefiting from the proffer.
B. For monetary proffers, the cost of enforcement shall be borne by the
jurisdiction which is to receive the monetary proffer. If monetary proffers are to be received in
part by both jurisdictions, the cost of enforcement shall be shared by the jurisdictions prorata
upon the amount of monetary proffer claimed by each jurisdiction.
C. The cost of enforcement of non-monetary proffers shall be borne by the
jurisdiction to be primarily benefited from the non-monetary proffer.
D. For circumstances not clearly covered by subparagraph B or C above, the
Town and County agree to cooperate in good faith to carry out the intent as set forth in
subparagraph A, above.
E. In the event the Town is unable or fails for any reason to enforce proffers
on any property subject to this Agreement, the County shall have the right to enforce such
proffers, with the recipient of cash proffers and the allocation of the expense of enforcement to
be as set forth in this Agreement.
9. The Town and County recognize that future proffers may be of a kind not
expressly anticipated by this Agreement. The Town and County agree to use their best efforts to
handle proffers consistent with the basis of the proffers and the terms of the proffers. The Town
and County further agree to amend this Agreement in the future, where necessary, to address
issues not addressed by this Agreement including without limitation, proffers which exist on
property when the property comes into the Town by annexation or boundary line agreement.
This Agreement also expressly covers any lands which comes into the Town by annexation or
boundary line agreement following the execution of this Agreement.
10. The County shall be responsible for the reporting requirements under Virginia
Code Section 15.2-2303.2 for cash proffers collected by the Town and paid to the County
pursuant to this Agreement.
11. In the event this Agreement is terminated prior to the payment of all monetary
proffers for the benefit of the County, such monetary proffers will continue to be paid by the
Town to the County as such proffer payments are made. In the event this Agreement is
terminated prior to the completion of non-monetary proffers for the benefit of the County, such
non-monetary proffers shall continue to be enforced as set forth in Paragraph 8, above.
WITNESS the following signatures and seals:
Approved by the
Middletown Town Council
On
2005
Approved by the
Frederick County Board of
Supervisors on
On Augustrl0 ,2005
TOWN OF MIDDLETOWN
BY~ (SEAL)
GENE DICKS, Mayor
COUNTY OF FREDERICK, VIRGINIA
By: `~~~ ~ (SEAL)
RICHARD SHICKLE, Chairman
COUNTY of FREDERICK
John R. Riley, Jr.
County Administrator
540/665-5666
Fax 540/667-0370
August 11, 2005 E-mail:
jriley @ co.frederick. va.us
Patricia J. Mullins
Town Clerk
Town of Middletown
P. O. Box 696
Middletown, VA 22645
Dear Pat:
The Frederick County Board of Supervisors, at their meeting on August 10, 2005, approved
the Resolution Authorizing Adoption of the Joint Agreement for Administration of Proffers. In
similar action, the Board approved the Resolution Authorizing the Advertisement of Public Hearing
to Adopt Option 2 Agreement to Relocate the Boundary Line Between the Town ofMiddletown and
the County of Frederick. Please find the executed resolutions enclosed.
Should you have any questions, please do not hesitate to contact me.
Sincerely,
c
John R. y, Jr.
County Administrator
JRR/tjp
Enclosures
cc: Clay L. Athey, Jr., Attorney
C:\1'1P'vniddletown\LelMullinsPatSoundaryLinelssue(OS I OOSBdM[g).wpd
]07 North Kent Street Winchester, Virginia 22601-5000
NAPIER, POND, ATHEY &ATHEY, P.C.
ATTORNEYS AT LAW
35 N. ROYAL AVENUE
P.O. BOX 395
FRONT ROYAL, VIRGINIA 22630
RONALD LEWIS NAPIER
J. DANIEL FOND II PHONE (540) 63b-2123
KIMBERLY M. ATHEY FAX (540) 635-0004
CLIFFORD L. ATHEY, JR. AUgUSt 3, 2005 lawyers@npaalaw.mm
J. DANIEL POND III PLEASE REPLY TO:
JOHN S. BELL FO. ROX 395
Jay Tibbs
Deputy County Administrator
County of Frederick, VA
107 N. Kent Street
Winchester, Virginia 22601
Dear Jay:
to
There are two separate items on the August .8~ 2005 Agenda which relate to the
historically cooperative relationship between the Town of Middletown and the County of
Frederick:
I. ITEM ONE
RESOLUTION AUTHORIZING ADOPTION OF JOINT AGREEMENT FOR
ADMINISTRATION OF PROFFERS
The initial item on the August 10"' Agenda involves Middletown's request that the
Board of Supervisors authorize its Chairman, Richard Shickle, to enter into a Joint Agreement
for the Administration of Proffers. Pursuant to the proposed Agreement, when development
occurs within Middletown, the Town of Middletown would collect proffers on behalf of
Frederick County to offset the impact of that development on Frederick County.
Back Creek Supervisor, Barbara Van Osten, and Opequon District Supervisor, Bill
Ewing, have been working with the Town of Middletown for some time to develop a fair and
equitable set of Agreements to permit the Town of Middletown to expand Middletown's
boundary while ensuring that the County of Frederick receives fair compensation for the effect
of development within Middletown. The Joint Agreement for the Administration of Proffers is
a precursor to any boundary adjustment proposal.
As a result of Supervisor Van Osten and Supervisor Ewing's hard work, the
Middletown Town Council adopted., on June 13, 2005, an Ordinance pursuant to Section 15.2-
1300 of the Code of Virginia, which requires Middletown to collect proffers on behalf of
Frederick County within any areas annexed by Middletown after July 31, 2005. Section 15.2-
1300 also requires that a Joint Agreement for the Administration of Proffers be agreed to
before the Ordinance previously adopted by Middletown can take effect. At the July 11, 2005
meeting of the Middletown Town Council, Mayor Gene Dicks executed the Joint Agreement
for Administration of Proffers which is before the Board on August 10"'. The Town of
Middletown is requesting that the Board of Supervisors pass the Resolution Authorizing
Adoption of the Joint Agreement for Administration of Proffers so that Chairman Richard
Shickle may execute the Agreement on the Board's behalf.
The Joint Agreement for Administration of Proffers will be in effect for a period of
twenty (20) years. It sets up a procedure whereby the Town will provide the County Planning
Department with a copy of any rezoning Petition within the annexation area, permitting
Frederick County to calculate, through its impact model, the impact of the development on
Frederick County services. The County staff will then communicate the expected cash proffers
for Frederick County which Middletown will then make a condition of the rezoning approval.
II. ITEM TWO
RESOLUTION AUTHORIZING ADVERTISEMENT OF PUBLIC HEARING TO ADOPT
AGREEMENT TO RELOCATE THE BOUNDARY LINE BETWEEN THE TOWN
OF MIDDLETOWN AND THE COUNTY OF FREDERICK
The second item on the August 10, 2005 Agenda involves the request by the Town of
Middletown that the Board of Supervisors adopt one of two separate Resolutions which
authorize a public hearing on an Agreement to Relocate the Boundary Line Between the Town
of Middletown and the County of Frederick. The Option 1 Agreement would permit the
boundary adjustment of (4 parcels containing 64.17 acres located to the north of Middletown).
The Option 2 Agreement would permit the boundary adjustment of (11 parcels including the 4
parcels north of the Town of Middletown plus another 7 parcels containing an additional 64.27
acres to the south).
The Board of Supervisors are being requested to adopt either the Option 1 Resolution to
advertise the proposed Option 1 Agreement (64.12 acres north of the Town of Middletown) or
the Option 2 Resolution to advertise the proposed Option 2 Agreement (128.44 acres located
north and south of Middletown) for a Public Hearing.
Discussions leading to this request for boundary adjustment began in 2001. At the
direction of the County of Frederick, the Middletown Town Council previously appointed the
Foresight Middletown Committee which developed a comprehensive future land use plan for
approximately 310 acres of land located generally to the north and south of the current
boundary of the Town. Back Creek Supervisor, Barbara Van Osten, served on the committee
which developed the Foresight Middletown Plan.
Following numerous public meetings held by the Foresight Middletown Committee, the
Foresight Middletown Future Land Use Plan was recommended and finally adopted by the
Middletown Town Council at its meeting on February 14, 2005.
Following the approval of the Foresight Middletown Future Land Use Plan by the
Frederick County Board of Supervisors earlier this year, the Board appointed Back Creek
z
District Supervisor, Barbara Van Osten, and Opequon District Supervisor, Bill Ewing, as a
Liaison Committee to facilitate an agreement to relocate the boundary of Middletown
consistent with the Foresight Middletown Plan.
At the Liaison Committee's request, the Middletown Town Council also adopted the
future land use proposals contained in the Foresight Middletown Land Use Plan into
Middletown's Comprehensive Plan to ensure proper development in any area boundary
adjusted into the town.
Section 15.2-3107 and Section 15.2-3108 of the Code of Virginia, 1950, as amended,
require that both Frederick County and the Town of Middletown advertise for Public Hearing
their intention to adopt either the Option 1 (64.17 acres) or Option 2 (128.44 acres)
Agreements to Relocate the Boundary Line for two successive weeks in a newspaper having
general circulation in both localities before it can be finally adopted by both localities.
The Option 1 and Option 2 proposals come to the Board after numerous discussions
with officials and adjoining landowners considered for inclusion in the Town. The
Middletown Town Council has reduced its request from the 310 acres contained in the
Foresight Middletown Committee discussions to either (Option 2) 128.44 acres located within
the 310 acres north and south of town or (Option 1) 64.17 acres located within the 310 acres
located north of town. It should be noted that, by unanimous vote at its July 11, 2005 meeting,
the Town Council expressed a preference for Option 2 but would accept the will of the Board
of Supervisors in this matter. It should be further noted that all 11 landowners to be boundary
adjusted under Option 2 have given their written consent to the boundary adjustment including
the 4 landowners contained in the Option 1 proposal. The reason for the reduction from the
original 310 acres request is that the Middletown Town Council felt that they should only
request a boundary adjustment of those undeveloped properties whose landowners asked to be
within the Town of Middletown.
Following a Public Hearing on either the Option 1 or Option 2 Agreement, the Board
of Supervisors may adopt the option they choose at the August 10"` meeting or a lesser amount
of land within the option chosen for annexation effective on December 31, 2005.
Following final adoption of the Agreement to Relocate the Boundary Line under Option
1 or Option 2 by both the Town of Middletown and Frederick County, under Section 15.2-
3108 of the Code of Virginia, 1950, as amended, the Circuit Court of Frederick County will
review the evidence submitted in support of the adopted Agreement and by Order establish the
new boundary to become effective on December 31, 2005.
I hope this letter adequately explains the process and I will be available if you or any
members of the Board have any questions.
Sincergl
Cli orrd L Athey, Jr.
3