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September 22 2021 Regular Meeting Minutes 96 MINUTES REGULAR MEETING FREDERICK COUNTY BOARD OF SUPERVISORS WEDNESDAY, SEPTEMBER 22, 2021 7:00 P.M. BOARD ROOM, COUNTY ADMINISTRATION BUILDING 107 NORTH KENT STREET, WINCHESTER, VIRGINIA ATTENDEES Board of Supervisors: Charles S. DeHaven, Jr., Chairman; Robert W. Wells, Vice Chairman; Blaine P. Dunn; Judith McCann-Slaughter; J. Douglas McCarthy; and David D. Stegmaier were present. Shawn L. Graber participated remotely. Staff present: Mary Beth Price, Interim County Administrator; Jay E. Tibbs, Deputy County Administrator; Roderick B. Williams, County Attorney; Karen Vacchio, Public Information Officer; Wyatt Pearson, Planning Director; Candice Perkins, Assistant Director of Planning; John Bishop, Assistant Director of Planning-Transportation; Steve Majchrzak, Fire Chief; Scott Varner, Director of Information Technologies; and Ann W. Phillips, Deputy Clerk to the Board of Supervisors. CALL TO ORDER Chairman DeHaven called the meeting to order at 7:00 p.m. REMOTE MEETING PARTICIPATING APPROVED Upon motion of Supervisor McCarthy, seconded by Supervisor Dunn, remote participation by Supervisor Graber was approved on a voice vote. RECONVENTION AND CERTIFICATION OF CLOSED SESSION The Board, pursuant to Va. Code Sec. 2.2-3711(A)(1) and 2.2-3712(B), solely for the purpose of interviewing candidates for the position of County Administrator, entered a closed session on September 8, and on September 22, the meeting was reconvened on motion of Vice Chairman Wells, seconded by Supervisor Slaughter, and carrying on a voice vote. Vice Chairman Wells moved that the Board of Supervisors of Frederick County certify that, to the best of each member's knowledge, (i) only public business matters lawfully exempted from open meeting Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 97 requirements by Virginia law were discussed in the closed meeting to which this certification applies, and (ii) only such public business matters as were identified in the motion convening the closed meeting were heard, discussed, or considered by the Board. Supervisor McCarthy seconded the motion which carried as follows on a recorded vote: Blaine P. Dunn Aye David D. Stegmaier Aye Shawn L. Graber Aye Robert W. Wells Aye J. Douglas McCarthy Aye Charles S. DeHaven, Jr. Aye Judith McCann-Slaughter Aye INVOCATION Supervisor Stegmaier delivered the invocation. PLEDGE OF ALLEGIANCE Vice Chairman Wells led the Pledge of Allegiance. ADOPTION OF AGENDA—APPROVED Supervisor Slaughter moved for approval of the agenda as presented. The motion was seconded by Vice Chairman Wells and carried on a voice vote. CITIZEN COMMENTS Josh Phelps, Gainesboro District, spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch' saying now is the time for the Board to act on the matter. Eric Reifinger,Shawnee District, spoke in opposition to the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch' saying that the governor's powers and duties for medical emergencies are limited to protect public safety. Clay Perry, Back Creek District, spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch.' Lindsay Shumaker, City of Winchester, said as a medical profession she is in favor of `A Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 98 Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch.' Debra Crowley of Stephens City spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch.' Josh Ludwig, Shawnee District, spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch.' James Holbrook, Shawnee District, spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch' and suggested it should be expanded to cover other issues. Samantha Armel, Red Bud District, spoke in favor of the agenda item titled `A Resolution Which Calls Upon the Virginia General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment and the Delegation of that Authority to the Executive Branch' saying vaccine mandates are dangerous. ADOPTION OF CONSENT AGENDA—APPROVED Supervisor Slaughter moved for adoption of the consent agenda as presented. Supervisr McCarthy seconded the motion which carried on a recorded vote as follows: Blaine P. Dunn Aye David D. Stegmaier Aye Shawn L. Graber Aye Robert W. Wells Aye J. Douglas McCarthy Aye Charles S. DeHaven, Jr. Aye Judith McCann-Slaughter Aye -Approval of Board of Supervisors-Frederick Water Joint Work Session Minutes of September 8, 2021 - CONSENT AGENDA APPROVAL -Approval of Regular Meeting Minutes of September 8, 2021- CONSENT AGENDA APPROVAL - Request from the Commissioner of the Revenue for Refunds and Supplemental Appropriations: Undisclosed Taxpayer—Disabled Veteran's Relief of$9,847.95— CONSENT AGENDA APPROVAL Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 99 -Approval to Set a Public Hearing on October 27, 2021, for the Request for Revisions to the Frederick Water Articles of Incorporation- CONSENT AGENDA APPROVAL + + + + + + + + + + + + + + BOARD OF SUPERVISORS COMMENTS Supervisor Stegmaier read a statement regarding the recent procurement of the public radio system saying that it has been a success while suggesting that Supervisors Graber, Dunn, and McCarthy had either impeded the process or invited legal action against the County. He thanked the Communications Committee for their work during the procurement process. Supervisor McCarthy commented on Supervisor Stegmaier calling out fellow Board members saying that the vote to change consultants on the radio system was unanimous. Supervisor Dunn disagreed with the comments of Supervisor Stegmaier saying while there were policy differences, all Board members were glad to see the public radio system project moving forward. Supervisor Graber agreed with the comments made by Supervisors McCarty and Dunn saying that all Board members should have had the ability to share information during the procurement process. COUNTY OFFICIALS COMMITTEE APPOINTMENTS PAMELA LAM APPOINTED TO HANDLEY REGIONAL LIBRARY BOARD— APPROVED Supervisor Slaughter moved to appoint Pamela Lam both to fill the unexpired term and a new term ending 11-30-2025. Supervisor Stegmaier seconded the motion which carried on a voice vote. Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia + + + + + + + + + + + + + + 100 A RESOLUTION WHICH CALLS UPON THE VIRGINIA GENERAL ASSEMBLY TO AMEND THE RELEVANT STATUTES DEALING WITH MANDATING MEDICAL TREATMENT AND THE DELEGATION OF THAT AUTHORITY TO THE EXECUTIVE BRANCH-APPROVED Supervisor Graber stated his support for the proposed resolution saying it was not a discussion about vaccines but about individuals making their own medical decisions. He moved in favor of adopting the resolution and the motion was seconded by Supervisor McCarthy. Supervisor Stegmaier spoke in favor of the resolution saying that local governments have conceded too much authority to the state government. Supervisor Dunn spoke in favor of the resolution saying that the General Assembly should be allowed to override the Governor and that vaccines should not be mandated or be politicized. Vice Chairman Wells said he agrees with some of the resolution but that as a Board member must set personal opinions aside and do what is best for the whole County. He said it is outside the Board' purview to address state and federal actions. He said it behooves all to contact their state representative to make their opinions known. Supervisor McCarthy disagreed saying that the Board should make its wishes known and does so when it sends the legislative agenda to the state representatives. Vice Chairman Wells and Supervisor McCarthy discussed the timing for sending legislative items to Richmond. Chairman DeHaven said he disagreed with portions of the proposed resolution but would support it. The motion carried on a recorded vote as follows: Blaine P. Dunn Aye David D. Stegmaier Aye Shawn L. Graber Aye Robert W. Wells No J. Douglas McCarthy Aye Charles S. DeHaven, Jr. Aye Judith McCann-Slaughter Aye Calling Upon the General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment by Establishing a Clear and Limiting Delegation of Authority to Those in the Executive Branch and in Local Government Offices to Impose Mandates WHEREAS, the Virginia Bill of Rights contains a provision Article I,§ 16 of the Constitution of Virginia Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 101 that states,in part,that[no individual] "shall be enforced,restrained,molested,or burthened in his body or goods,nor shall otherwise suffer on account of his religious opinions or belief;but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish,enlarge,or affect their civil capacities";and WHEREAS, this constitutional protection against government's burdening of the exercise of religious convictions is self-executing, as the Supreme Court of Virginia has held, and requires no legislative implementation because it appears in the Virginia Bill of Rights;and WHEREAS, every individual enjoys the constitutional right to refuse medical treatment on the grounds that it is contrary to his or her religious belief,and WHEREAS,every individual also enjoys a constitutional right to personal integrity and bodily autonomy and to refuse medical treatment as a function of his or her right to liberty under the Due Process Clause of the United States Constitution and the Constitution of Virginia;and WHEREAS, certain actions of government officials of the Commonwealth of Virginia and the United States that purport to impose or threaten future imposition of mandates on Virginians regarding vaccinations and the wearing of face masks unconstitutionally impinge on the constitutional rights of the people;and WHEREAS, the Board of Supervisors of Frederick County have an obligation to speak on behalf of the residents of the County when actions or threatened actions of the federal or Virginia officials would burden the constitutional rights of the people;and WHEREAS,the authority of Virginia officials in the Executive Branch to impose mandates is derived from powers delegated to them by the General Assembly and is not a power inherent in any executive office; and WHEREAS,officials to whom the General Assembly has delegated the authority to impose mandates have abused that authority by requiring those who assert religious or medical exemptions to comply with burdensome and discriminatory tests and other conditions that violate their constitutional rights;and WHEREAS,the judiciary has failed to date to vindicate the constitutional rights of the people that are or would be violated by such mandates;and WHEREAS,the governing bodies of local governments in Virginia lack the legal and practical means of directing and controlling the constitutional officers, including Commonwealth's Attorneys, Sheriffs and school boards,who are charged with enforcing such mandates;and WHEREAS, the most effective, expeditious and timely response to the unconstitutional imposition of mandates would be a repeal by the General Assembly of Virginia of the authority delegated to executive officials to impose mandates on the people;and WHEREAS, should the General Assembly decline to repeal the authority delegated to officials to impose mandates and officials who have imposed the mandates do not withdraw or appropriately revise the mandates,the people will be left with the extreme remedy of civil disobedience,which carries the risk of conviction,fine and/or imprisonment. NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of Frederick County, Virginia calls upon the General Assembly to amend the relevant statutes dealing with mandating medical treatment by establishing a clear and limiting delegation of authority to those in the Executive Branch and in local government offices to impose mandates, which overbroad delegation has been abused, and urges every local governing body and school board in the Commonwealth to join in this appeal to the General Assembly. + + + + + + + + + + + + + + COMMITTEE BUSINESS—None PUBLIC HEARINGS (NON-PLANNING ISSUES)- None Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 102 PLANNING COMMISSION BUSINESS - PUBLIC HEARINGS REZONING #04-21 ORRICK COMMONS -APPROVED Candice Perkins, Assistant Director of Planning, reviewed the request to rezone 33.61 acres from the RP (Residential Performance) District with proffers to the RP (Residential Performance) District with revised proffers. She said the Planning Commission held a public hearing for this rezoning at their meeting on September 1, 2021, and ultimately recommended approval, adding that the Planning Commission during their meeting discussed buffering along adjacent developments and the potential to relocate the park in lieu of removing it entirely. Following the meeting, she said, the Applicant submitted revised proffers seeking to address buffering and a proposed relocation of the park. Supervisor Slaughter and Ms. Perkins discussed sidewalks as required in the final design plan. Patrick Sowers representing the applicant, Dave Hoilliday Construction, noted the original rezoning was done in 2006 and that the current plan is for fewer housing units. Supervisor Dunn and Mr. Sowers discussed feedback and concerns from adjacent neighborhoods. Chairman DeHaven opened the public hearing. Adam Spates, Red Bud District, said his property adjoins the northeast corner of the subject property and discussed screening and his preference for leaving existing hardwoods as a buffer to the new development. Martha Sparkman, Red Bud District, questioned traffic impacts of the planned development. Chairman DeHaven closed the public hearing. Mr. Sowers discussed the buffering required for the project and said that VDOT found no traffic concerns regarding the project. Chairman DeHaven asked Mr. Sowers to clarify the updated proffer statement. Supervisor Dunn clarified that the original rezoning was in 2006 and was not newly Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 103 approved. Vice Chairman Wells said that if hardwoods adjacent to the neighboring properties can be saved, he is in favor of that. Supervisor Dunn moved to approve Rezoning #04-21 Orrick Commons. Supervisor McCarthy seconded the motion which carried on a recorded vote as follows: Blaine P. Dunn Aye David D. Stegmaier Aye Shawn L. Graber Aye Robert W. Wells Aye J. Douglas McCarthy Aye Charles S. DeHaven, Jr. Aye Judith McCann-Slaughter Aye ORDINANCE AMENDING THE ZONING DISTRICT MAP REZONING#04-21 ORRICK COMMONS WHEREAS,REZONING#04-21 ORRICK COMMONS was submitted by David Holliday Construction,Inc. to rezone 33.61+/-acres from the RP(Residential Performance)District to the RP(Residential Performance) District with revised proffers. The property is located north of the intersection of Senseny Road(Route 657) and Greenwood Road (Route 656), west of the terminus of Farmington Boulevard (Route 1406) within the Lynnhaven Subdivision and east of the terminus of Farmington Boulevard within the Steeplechase Subdivision in the Red Bud Magisterial District;and WHEREAS, the Frederick County Planning Commission held a public hearing on this Rezoning on September 1,2021 and recommended approval;and WHEREAS, the Frederick County Board of Supervisors held a public hearing on this Rezoning during their regular meeting on September 22,2021;and WHEREAS,the Frederick County Board of Supervisors finds the approval of this Rezoning to be in the best interest of the public health,safety,welfare,and in conformance with the Comprehensive Plan. NOW,THEREFORE,BE IT ORDAINED by the Frederick County Board of Supervisors,that Chapter 165 of the Frederick County Code, Zoning, is amended to rezone 33.61+/- acres from the RP (Residential Performance)District to the RP(Residential Performance)District with revised proffers,all as shown on the proffer statement bearing signature date September 22,2021. The conditions voluntarily proffered in writing by the Applicant and the Property Owner are attached. + + + + + + + + + + + + + + PLANNING COMMISSION BUSINESS - OTHER PLANNING BUSINESS UPDATE TO THE FREDERICK COUNTY COMPREHENSIVE PLAN — SENT FORWARD TO PUBLIC HEARING Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 104 Candice Perkins, Assistant Director of Planning, said the Comprehensive Plans and Programs Committee (CPPC) discussed proposed Comprehensive Plan updates at their March, April, June, July, and August 2021 meetings and endorsed the draft Comprehensive Plan update and sent it forward to the Planning Commission for discussion. She said specific sections of The Plan have also been reviewed by Frederick County Public Schools, Parks and Recreation, Fire and Rescue, the Airport Authority, the Economic Development Authority, Frederick Water and the Transportation Committee. She said that the Board of Supervisors could consider updating the Western Jubal Early Land Use Plan to remove the Urban Development Area and Water Service Area due to the recent downzoning of this area. On motion of Supervisor McCarthy, seconded by Supervisor Slaughter, the Comprehensive Plan Update was sent forward to public hearing on the following recorded vote: Blaine P. Dunn Aye David D. Stegmaier Aye Shawn L. Graber Aye Robert W. Wells Aye J. Douglas McCarthy Aye Charles S. DeHaven, Jr. Aye Judith McCann-Slaughter Aye + + + + + + + + + + + + + + BOARD LIAISON REPORTS Vice Chairman Wells noted the progress on the new facility for Frederick Water saying it was on time and under budget. Supervisor Dunn said questions from the public about potential new development on Route 522 are welcome. CITIZEN COMMENTS Miles Adkins, Shawnee District, thanked the Board for passing the resolution Calling Upon the General Assembly to Amend the Relevant Statutes Dealing with Mandating Medical Treatment by Establishing a Clear and Limiting Delegation of Authority to Those in the Executive Branch and Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 105 in Local Government Offices to Impose Mandates saying he would like to see it extended to the School Board regarding the mask issue. Brian Nuri, Opequon District, referenced the resolution passed earlier saying that vaccines have been mandated for decades. He said politics is getting in the way of health care guidance. Joy Dunn, Red Bud District, discussed the discord among Board members saying that Supervisor Stegmaier had attacked Supervisors Graber, Dunn, and McCarthy. David Sparkman, Red Bud District, said he wanted to correct errors he had heard earlier in the meeting. He said those referenced as consulted experts are appointed by government officials and are not impartial. He discussed alternative treatments for Covid-19 symptoms, the risk of vaccines, and natural immunity against the virus. Clay Perry, Back Creek District, asked the Board to investigate a $50,000 raise given to School Superintendent David Sovine over the summer and determine the source of the additional funds. Christie Scarborough, Stonewall District, discussed the difficulties faced because her son, a special needs student, has sensory issues and is being kept out of school since he cannot wear a mask. She said medical exemptions are not being accepted by schools and hospitals. Martha Sparkman, Red Bud District, said nurses were fired for not getting the vaccine saying they have seen a lot and must have a good reason for not wanting the vaccine. She said there is a lack of acceptable treatment for this disease unlike any disease prior to this. Eric Reifinger, Shawnee District, noted the County's high priority needs saying that the budget season is coming soon. He asked the Board to address construction of a fourth county high school saying it has been on the County's CIP for a long time. Jen McClellan, Back Creek District, discussed helping farmers and students by encouraging healthy eating from local sources. BOARD OF SUPERVISORS COMMENTS Supervisor Slaughter recognized Barrett Machine, Inc., as they celebrated their 30th anniversary in business in Frederick County. She noted her attendance the previous week at an Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia 106 event at Frederick County Middle School. She commended all parties involved in the recent completion and dedication of the Crossover Boulevard project. Supervisor Dunn referenced the comments about a fourth high school saying there have been options discussed such as additions to the other high schools to accommodate growth. Supervisor McCarthy referenced the comments about a fourth high school saying that context is needed when discussing student capacity numbers. He said that sometimes it is not more students that cause a building to be over capacity but rather an arbitrary change in recommended space by a consultant. ADJOURNMENT On motion of Vice Chairman Wells, seconded by Supervisor McCarthy, the meeting was adjourned at 8:59 p.m. Charles S. DeHaven, Jr. Mary T. Price Chairman, Board of Supervisors Interim County Administrator Minutes Prepared By: Ann W. Phillips Deputy Clerk, Board of Supervisors Minute Book 47 Board of Supervisors Regular Meeting of September 22, 2021 County of Frederick, Virginia