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12-04-2008 Regular MeetingREGULAR MEETING OF THE ISLE OF WIGHT COUNTY BOARD OF SUPERVISORS HELD THE FOURTH DAY OF DECEMBER IN THE YEAR TWO THOUSAND AND EIGHT PRESENT: Stan D. Clark, Chairman James B. Brown, Jr., Vice Chairman Phillip A. Bradshaw Al Casteen Thomas J. Wright, III Also Attending: A. Paul Burton, Interim County Attorney W. Douglas Caskey, County Administrator Patrick J. Small, Assistant County Administrator Carey Mills Storm, Clerk /1 Chairman Clark called the meeting to order at 4:00 p.m. Chief Animal Control Officer Sullivan showed a dog currently up for adoption at the County's animal shelter. Supervisor Casteen delivered the invocation. The Pledge of Allegiance was conducted. Chairman Clark called for Approval of the Agenda. Interim County Attorney Burton offered the following amendments to the agenda: Add a Special Presentation by David Rose, the County's financial advisor, on the results of the $25,000,000 bond sale which occurred today; under the County Attorney's Report, add a request for a public hearing to amend the budget to appropriate funds for the purchase of Cluster 1 and 2 for the PACE Program, Animal Shelter, Smithfield Fire Station and Isle of Wight Rescue Squad; under the County Attorney's Report, add a request for a public hearing for the proposed Lease Agreement with the Carisbrooke Homeowners Association; under the County Attorney's Report, add a request for a public hearing to amend the Subdivision Ordinance; under the County Attorney's Report, add a Resolution to appropriate $595,000 to purchase a thirty five percent (35 interest in the Griffin property; add a request for 1 Angela Gank Commissioner of Revenue 5 Andrea Clontz County Administration 5 Diane Jones Emergency Communications 5 Travis Dortch Emergency Communications 5 Brett Abraham Emergency Services 5 Edward "Budd Kea En. ineering Division 5 Mary Hood Historic Resources Division 5 Kari Sletten Information Technology 5 Nathan Etheridge Public Works 5 Willie Davis Public Works 5 Trissy Taliaferro Public Works 5 Carlos Batten Public Works 5 Vernetta Grant Sheriff's Office 5 Jason Turner Sheriff's Office 5 Debbie Sivertson Historic Resources Division 10 Kelly Harcum Parks Recreation 10 Gary Brown Sheriff's Office 10 Randy Patrick Sheriff's Office 10 Kevin Taylor Sheriff's Office 10 Gayla Phillips Treasurer 10 Cyndi Wellman Information Technology 15 Zenobia Williams Parks Recreation 15 Donnie Brown Sheriffs Office 15 Billy Hall Sheriff's Office 20 Charlie Phelps Sheriff's Office 20 Eileen Smith Sheriff's Office 20 Gerald Gwaltney Commissioner of the Revenue 25 the Chairman to depart from the agenda upon the arrival of Donald Hart, President of the Virginia Association of Counties, so that he may address the Board; under the Transportation Report, add a request for improvement of Strawberry Plains Road; and, under the Closed Meeting, add one (1) item. Supervisor Brown moved that the Board approve the agenda, as amended. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. 11 Chairman Clark called for Special Presentations /Appearances. David Rose, Davenport Company, reported on the $25,000,000 bond sale that occurred today on behalf of the County, noting a savings to the County of $6.5 million in interest over the next 23+ years. Chairman Clark presented the following employees with Employee Service Awards: 2 Missy Schmidt, Communications Manager, Hampton Roads Partnership, briefed the Board relative to that organization's regional activities. Supervisor Wright commented that all localities should be working together for the benefit of the whole region. He noted that the City of Virginia Beach is unable to control its growth and the County's trash tipping fees are increasing, but Virginia Beach is capped out. He commented that the water pipe line constructed through the County has caused damage to certain farms and caused affected farmers to be unable to recover. He commented that the power line now being laid through the County is causing damage to County farms and that there will be no recovery for these farmers either because the line will always be there and because Virginia Beach is unable to control its growth, yet it is collecting all the taxes, while the County is paying the burden. He noted that the military now wants to locate an Outlying Landing Field (OLF) and interrupt the County's lifestyle, all because of the City of Virginia Beach. Supervisor Bradshaw remarked that the Partnership has played politics in order to get the Transportation Authority approved. He remarked that the City of Virginia Beach is not paying the same tipping fee as the County's citizens and the Board is forced to place this financial burden on the County's real estate tax rate because counties do not have the same meals and occupancy taxes to rely on that Virginia Beach enjoys. He commented that he has always been a strong advocate of regionalism and that he believes now is the time that the Partnership relays that message. Chairman Clark requested Ms. Schmidt to relay the concerns noted by Supervisor Wright to the Partnership's staff and that he would air Supervisor Wright's concerns with respect to how the County feels that it has been taken advantage of with respect to power lines, SPSA and water issues. He remarked that he did not agree with Supervisor Bradshaw's comments about politics and the Transportation Authority. Dr. Mary Mahaffey formerly introduced Diane Pollard who addressed the initiative of partners in education. Supervisor Bradshaw requested Mr. Robertson to provide assistance with respect to publicizing the initiative on the "County Beat" program. Yvonne Hilliard- Bradley, Assistant Library Director of the Blackwater Regional Library, formally introduced the Managers of the Carrollton, Windsor and Smithfield branch libraries and provided a PowerPoint presentation on programs, services and usage at the Isle of Wight branches. /1 3 Chairman Clark called for Regional Reports. Supervisor Brown reported that the focus of the most recent meeting of the Southeastern Public Service Authority was on strategies to cope with the shortcoming of future funding. He advised that tipping fees are anticipated to increase due to SPSA not having the quantity of trash projected. He noted that the SPSA Board of Directors is waiting to see what the Cities of Suffolk and Virginia Beach are going to do. He noted that a recent report had indicated that it was a mistake to have prearranged agreements with hosting communities. He commented that the City of Suffolk was able to dispose of all its excess debris for free when the last hurricane hit this area. /1 Chairman Clark called for Transportation Matters. Kristin M. Mazur, County Engineer, recommended that the Board adopt the Resolution of the Board of Supervisors of Isle of Wight County Giving Notice of Their Intention to Abandon Route 1608 (Piney Grove Street) contained in the agenda. She notified the Board that the previous Resolution adopted by the Board had not been in compliance with VDOT standards. Supervisor Bradshaw moved that the following Resolution be adopted: RESOLUTION OF THE BOARD OF SUPERVISORS OF ISLE OF WIGHT COUNTY, GIVING NOTICE OF THEIR INTENTION TO ABANDON ROUTE 1608 (PINEY GROVE STREET) WHEREAS, the Isle of Wight County Board of Supervisors, following a regular meeting on December 4, 2008, giving notice of their intention to request the Virginia Department of Transportation to abandon Route 1608 (Piney Grove Street), from Lynn Road to Dead End, a distance of 0.13 miles; and WHEREAS, Route 1608 serves no public necessity and is no longer necessary as a part of the Secondary System of State Highways; and WHEREAS, the Board of Supervisors acknowledges its willingness to hold a public hearing if requested by the Commonwealth Transportation Board or any citizen that uses the road within thirty days following the publication of this notice of intent; and NOW, THEREFORE, BE IT RESOLVED, the Engineering Department's staff is directed to post and publish notice of the Board's intent to abandon the aforesaid section of Route 1608, pursuant to Section 33.1 -151 of the Code of Virginia of 1950, as amended; and 4 BE IT FURTHER RESOLVED, that a certified copy of this resolution be forwarded to the Commissioner of the Virginia Department of Transportation. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Bradshaw further moved that Strawberry Plains Road (Route 681) be placed on the Unpaved Roads List/Candidates Roads List as project #15. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Responsive to Supervisor Brown's request for clarification on the "Change green arrows to permissible yields at Smith's Neck Road and Brewer's Neck Boulevard, Kristen M. Mazur, County Engineer, explained that the rationale behind a green arrow being changed to a green ball is that it has been found that accidents increase during the transition period. Chairman Clark remarked that it did not make sense that a competent driver could not make a safe left turn at a green light at the intersection of Smith's Neck Road and Brewer's Neck Boulevard. He commented that he has only seen one accident in his lifetime at that intersection and it is not an unsafe intersection. He stated that under VDOT's rationale, once a turn signal is there, it can never be changed because of that transition period. Ms. Mazur advised that there has been one signal that has been changed in the City of Suffolk on Route 10 at the YMCA and accidents did occur there initially, but it can be done. Supervisor Brown advised that the shallow ditches at Tyler's Beach Road do not drain adequately in certain areas. He inquired how encompassing the County-wide drainage plan is for the Newport District. Ms. Mazur advised that she did not anticipate the study to include the County's entire roadway network, however, this could be included in the scope of work, but doing so would increase the project costs. She advised that staff will first analyze what specific areas are having problems with poor storm water management. Supervisor Brown advised that when VDOT graded Holly Point Road it closed the ditches leaving no where for excess water to drain. 5 Chairman Clark moved that the Board recess in order to attend the County's Annual Tree Lighting Ceremony. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Chairman Clark moved that the Board return to the regular order of the agenda. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. /1 Supervisor Brown inquired about the preliminary study with respect to Owen's Estates and the flooding that is occurring in the roadway. Mac Neblett, VDOT Residency Administrator, advised that a preliminary study has recently been completed by VDOT which revealed that underground piping could be involved at certain locations, which may be as deep as six (6) or seven (7) feet that would lead the water to the stormwater management pond which flows into the creek bed. He offered to contact Supervisor Brown and meet with him at the site. Chairman Clark called for Citizens Comments. There were none offered. Donald Hart, President, VACo, stated his goal as President is to visit and be accessible to all 95 Virginia counties. He advised that he has already begun to meet with the Governor, Speaker, members of the House and Senate, in an effort to mediate solutions to common problems. He noted the focus is on stopping unfunded mandates and equalizing the counties with towns and cities. He advised that he has already met with Federal representatives and he intends to meet with members of Congress. He noted that letters have been sent to President Bush, President Elect Obama and the entire Congressional congregation, both old and new members, to get them to recognize that any future stimulus package could be very well served if some of those funds are sent to localities. He requested that counties stay informed about VACo benefits and services; utilize VACo's procurement process; and, participate in VACo's steering committees. He noted that if all localities stand together, much can be accomplished. He invited all to contact him or VACo with suggestions, concerns, solutions and criticism. 6 Chairman Clark called for the County Attorney's report. Interim County Attorney Burton requested permission to advertise a public hearing to amend the budget to appropriate funds for the purchase of Cluster 1 and 2 for the PACE Program, the Animal Shelter, the Smithfield Fire Station and the Isle of Wight Rescue Squad. Supervisor Wright moved that the Board authorize the County Attorney's office to advertise the budget amendment at the Board's December 18, 2008 meeting. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton requested permission to advertise a public hearing for the proposed Lease Agreement with the Carisbrooke Homeowners Association. Supervisor Wright moved that the Board authorize the County Attorney's office to advertise the Lease Agreement at the Board's December 18, 2008 meeting. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton requested permission to advertise a public hearing to amend the Subdivision Ordinance. Supervisor Bradshaw moved that the Board authorize the County Attorney's office to advertise the amendment to the Subdivision Ordinance at the Board's December 18, 2008 meeting. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton requested that the Board adopt a Resolution to Appropriate $605,000 to Purchase a Thirty-Five Percent (35 Interest in the Griffin Property. Supervisor Wright moved that the following Resolution be adopted: RESOLUTION TO APPROPRIATE FUNDS FROM THE DESIGNATED FUND BALANCE FOR LAND ACQUISITIONS WHEREAS, the Board of Supervisors of the County of Isle of Wight, Virginia has approved the acquisition of a 35% interest in real property commonly referred to as the Griffin property, but more specifically identified as Tax Map Parcel Numbers 54- 01 -070A and 53- 01 -082A; and, WHEREAS, funds up to the amount of six hundred five thousand dollars ($605,000) need to be appropriated from the Designated Fund 7 Balance of the Capital Projects Fund to the FY 2008 -09 General Operating Budget of the County of Isle of Wight, Virginia. NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of the County of Isle of Wight, Virginia that up to six hundred five thousand dollars ($605,000) from the Designated Fund Balance of the Capital Projects Fund be appropriated to the FY 2008 -09 General Operating Budget. BE IT FURTHER RESOLVED that the County Administrator of the County of Isle of Wight, Virginia is authorized to make the appropriate accounting adjustment in the budget and to do all things necessary to give this resolution effect. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton reported that he had met unsuccessfully with representatives of the Eagle Harbor Shoppes and their attorney concerning their modification request to the tower /dome at that shopping center in an attempt to resolve a difference of opinion. He recommended that the Board deny the modification request as Mr. Wheeler has been unwilling to make any additional proposals as far as changes in the design. Attorney Watkins White, Kaufman Canoles, remarked that the option of utilizing a painting technique had been offered to the Board on August 24, 2008 in regards to its concerns with the dome and tower structure. She advised that following meetings with Interim County Attorney Burton, her client had decided that the painting technique was the most viable option in addressing the Board's concerns. She advised that her client also believes that he has put forth an honest effort in terms of resolving the issues, although the County is not in favor of those options. She noted that the tower and dome structure had been bonded in the amount of $51,000, in order to allow her client to move forward until there was a final resolution with the Board; however, because it has been determined by staff that her client not move forward, it does seem pointless for her client to have even offered the bond. She stated that she believes that the architectural requirements being imposed by the Board exceeds the County's authority. Interim County Attorney Burton advised that the shopping center is located in the Newport Development Service Overlay District and that the Board has established certain architectural design standards for that district. He noted that when the application was submitted to the Board, it was done as part of the site plan review process and was approved by the Board. He stated that the difference is that what was actually constructed was different than that reflected in the renderings and documents submitted to the Inspections Department and that the applicant had never returned to the 8 Board to request authorization to make that change. He stated that he disagreed with Attorney Watkins -White in that he believes that the Board does have the authority to enforce the County's ordinances. Chairman Clark moved that the Board deny the applicant's modification request. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton advised that he had one (1) matter to discuss with the Board later during the Closed Meeting. /1 Chairman Clark called for the General Services report. Eddie P. Wrightson, Director of General Services, recalled that the Board had taken action on August 18, 2008 to approve four (4) tasks associated with compliance of a Sanitary Sewer Consent Order, of which a Maintenance Operation Management Plan and a Sanitary Sewer System Evaluation Survey (SSES) are required to be submitted to the Department of Environmental Quality (DEQ) and the Hampton Roads Sanitation District (HRSD) by December 31, 2008. He advised that six (6) of the nine (9) stations have been completed to date and that there were no excessive sanitary sewer flows. He stated that the Management Operations and Maintenance Program (MOM) is a preventive maintenance driven approach to managing sanitary sewer systems, which will include routine maintenance tasks for the County. He requested the Board's authorization to submit the SSES Plan and MOM Plan to DEQ and HRSD. Supervisor Bradshaw moved that the Board authorize submittal of the Sanitary Sewer System Evaluation Survey Basin Determination and Management, Operations and Maintenance Program reports to the Hampton Roads Sanitation District and the Department of Environmental Quality. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Interim County Attorney Burton advised that there is also an ongoing Federal issue through the Environmental Protection Agency that has not yet been resolved. Chairman Clark called for consideration of the Consent Agenda. A. Requests for Proposals (RFPs) Employee Health Insurance Benefits and Workers' Compensation Benefits 9 Resolution to Authorize the Solicitation of Proposals for Employee Health Benefits and for Workers' Compensation Benefits B. Requests for Authorization Execute Project Administration Agreement for the Transportation Enhancement Grant Award from the Virginia Department of Transportation Resolution to Endorse the Authority of the County Administrator to Sign the Standard Project Administration Agreement for the Transportation Enhancement Grant Battery Park/Nike Park Trail C. Application for Grant Funds American Association for State and Local History Resolution to Authorize the Submission of a Grant Application and to Accept and Appropriate Grant Funds from the American Association for State and Local History D. Acceptance of Funding Technology Trust Fund Resolution to Accept and Appropriate Grant Funds from the Technology Trust Fund E. Application for Grant Funds The Virginia Department of Conservation and Recreation Resolution to Authorize the Submission of a Grant Application and to Accept and Appropriate Grant Funds from the Virginia Department of Conservation and Recreation F. Costs Associated with Tropical Storm Hanna Resolution to Appropriate Funds from the Unappropriated Fund Balance for Costs Associated with Tropical Storm Hanna G. New Wells at Courts Complex H. Isle of Wight County Museum Drainage /Scope of Services/Funding I. Monthly Engineering Projects Report J. Litter Pickup 10 Supervisor Wright moved that the Board approve the Consent Agenda, as presented. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. 1/ K. County Policy Amendment Resolution to Amend the County Policy Manual Chapter 1, Article VI, Section 6.8 L. Delinquent Real Estate Tax Collection Monthly Report Chairman Clark called for Appointments. Supervisor Bradshaw moved that the Board accept Stella Bradshaw's resignation from the Paul D. Camp Community College Board. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Bradshaw moved that the Board appoint Patricia Sowell to finish Stella Bradshaw's term on the Paul D. Camp Community College Board. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. /1 Chairman Clark called for Old Business. The application of the Isle of Wight County Board of Supervisors, owner, and the Isle of Wight County Parks and Recreation Department (applicant) for a Conditional Use Permit to allow for a public park and recreational area on 52 acres of land located at the intersection of Tyler's Beach Road (Rt. 686) and Woodmere Avenue (Rt. 2001) in the Hardy Election District. Mark Smolnik, Planning and Zoning, stated pursuant to Mr. Furlo's request that the application be postponed at the Board's meeting of November 20, 2008 as a result of the soils analysis not being complete, included in the agenda is the requested soil report for the Board's consideration. Supervisor Brown remarked that a pre- drainage and post drainage plan has not been developed. 11 Mr. Furlow advised that Resource International is being requested to provide a Scope of Work for a pre- drainage and post- drainage study and have provided an estimate of $12,500 to analyze the problems and provide recommendations and $14,750 to design solutions to address the problems. Supervisor Bradshaw moved that the Board appoint Supervisors Brown and Wright to serve on the Hardy Park Committee to review the engineering and site drainage; that they meet with staff and the firm of Resource International Engineer; and, return with a recommendation at the Board's December 18, 2008 meeting. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. With respect to the issue of storage needs in the Isle of Wight County Museum, Judy H. Winslow, Director of Tourism, advised that the Museum reopened to the public on November 15, 2008; however, parts of the museum collection are anticipated to remain permanently in storage as the size of the collection exceeds the amount of exhibit space that is available. She noted that the items stored will be rotated in and out of the Museum to periodically refresh and /or replace current exhibits. She noted that budgetary restraints and a lack of clarity about the specific amount of space that will be needed resulted in funds being allocated only until January 1, 2009. She advised that previously unspent salary funds in the Historic Resources' budget was allocated to cover the storage cost. She advised that original planning for storage space was incorporated during the CIP process; however, it was subsequently determined that off -site storage is significantly cheaper than the proposed new construction. She advised that next year's Historic Resources' operating budget will include those annual storage costs. She recommended that the Board authorize a transfer of $8,280 from the Contingency line item to the appropriate line item in the Historic Resources' budget. Supervisor Casteen advised that there have been approximately 580 individuals to visit the Museum since its reopening. Supervisor Wright moved that the Board authorize a transfer of $8,280 from the Contingency line item to the appropriate line item in the Historic Resources' Budget. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. With respect to the issue of the Chowan River Basin Study and gauges for the Blackwater River, Supervisor Bradshaw advised that gauges will be placed in the County and in the City of Franklin and that he has received permission from the property owner to install the gauge on Broadwater Road (Route 620). He stated in continuation with the Study, there will be a meeting in Gloucester with the regional committee. 12 With respect to VACo, Supervisor Bradshaw reported that he had recently met with the Governor's staff to express the County's concerns with the budget shortfall. He advised with respect to public education, textbook funding will most likely be eliminated, as well as medical insurance for teachers. He stated that VACo, VML, the Virginia School Board Association and Virginia Superintendents' Association are requesting that the localities be able to determine where the cuts will occur rather than the State mandating certain areas to be cut. He stated that the Governor will present his proposed budget by December 16, 2008 and he will have a better idea what the impact will be by the time the Board next meets. 1/ Chairman Clark advised that Gina Ippolito, Recreation Manager, will be ending her employment with the County's Parks and Recreation Department tomorrow. He publicly thanked Ms. Ippolito for her contributions. 11 Chairman Clark called for New Business. Interim County Attorney Burton requested a Closed Meeting pursuant to Section 2.2- 3711.A.3 of the Code of Virginia for the limited purpose of discussion regarding the acquisition of real property located in the Carrsville District. Supervisor Bradshaw moved that the Board enter the Closed Meeting for the reason stated by Interim County Attorney Burton. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Bradshaw moved that the Board return to open session. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Bradshaw moved that the following Resolution be adopted: CERTIFICATION OF CLOSED MEETING WHEREAS, the Board of Supervisors has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of the Virginia Freedom of Information Act; and, 13 WHEREAS, Section 2.2- 3712.D of the Code of Virginia requires a certification by this Board of Supervisors that such closed meeting was conducted in conformity with Virginia law; NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors hereby certifies that, to the best of each member's knowledge, (i) only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting to which this certification resolution 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 of Supervisors. VOTE AYES: Bradshaw, Brown, Casteen, Clark and Wright NAYS: 0 ABSENT DURING VOTE: 0 ABSENT DURING MEETING: 0 There was no action taken following the Closed Meeting. Chairman Clark advised that the Board would be going into a Closed Meeting again for the purpose of discussing a second matter which should have been included in the previous motion to go into the Closed Meeting. Interim County Attorney Burton requested a Closed Meeting pursuant to Section 2.2- 3711.A.3 of the Code of Virginia for the limited purpose of discussion regarding the acquisition of real property located in the Smithfield District. Supervisor Bradshaw moved that the Board enter the Closed Meeting for the reason stated by Interim County Attorney Burton. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Wright moved that the Board return to open session. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Bradshaw moved that the following Resolution be adopted: 14 /1 CERTIFICATION OF CLOSED MEETING WHEREAS, the Board of Supervisors has convened a closed meeting on this date pursuant to an affirmative recorded vote and in accordance with the provisions of the Virginia Freedom of Information Act; and, WHEREAS, Section 2.2- 3712.D of the Code of Virginia requires a certification by this Board of Supervisors that such closed meeting was conducted in conformity with Virginia law; NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors hereby certifies that, to the best of each member's knowledge, (i) only public business matters lawfully exempted from open meeting requirements by Virginia law were discussed in the closed meeting to which this certification resolution 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 of Supervisors. VOTE AYES: Bradshaw, Brown, Casteen, Clark and Wright NAYS: 0 ABSENT DURING VOTE: 0 ABSENT DURING MEETING: 0 At 7:00 p.m., Chairman Clark called for a public hearing on the following: An Ordinance to Amend Chapter 5, Elections, Article III, Section 5 -11, Enumerated and Section 5 -12, Boundaries, to split the Carrollton voting precinct in the Newport Election District into two separate voting precincts to be known as the Carrollton and Bartlett precincts. Mark C. Popovich, Assistant County Attorney, advised that the proposed Ordinance is responsive to the Electoral Board Secretary's previous presentation to the Board with respect to the recent Presidential election in which there were over 4,000 votes cast and which, under the Code of Virginia, requires that the precinct be split. He advised that the current Carrollton District is split into two (2) proposed districts along Brewer's Neck and Route 17 with the new site being proposed for the Carrollton Ruritans Club although it is located outside the boundaries of the new voting precinct. 15 Chairman Clark called for persons to speak in favor of or in opposition to the proposed Ordinance. No one appeared and spoke. Chairman Clark closed the public hearing and called for comments from the Board. Chairman Clark moved that the following Ordinance be adopted: AN ORDINANCE TO AMEND AND REENACT THE ISLE OF WIGHT COUNTY CODE BY AMENDING AND REENACTING CHAPTER 5. ELECTIONS. ARTICLE III. SECTION 5 -11. ENUMERATED. WHEREAS, on December 5, 2008, the Isle of Wight County Board of Supervisors revised Chapter 5. Elections. Article III. Section 5 -11. Enumerated in order to designate a new polling place for the newly created Bartlett Election District; and WHEREAS, following the enactment of said revision it has come to the Board's attention that an administrative revision is required for the designation of the Pons Precinct. NOW, THEREFORE, BE IT ORDAINED by the Isle of Wight County Board of Supervisors, Virginia, that Chapter 5. Elections. Article III. Section 5 -11. Enumerated is hereby amended and reenacted as follows: Sec. 5-11. Enumerated. The precincts for each election district and the polling place for each precinct shall be as set forth below: (a) Carrsville election district. (1) Camps Mill precinct: Polling place Otelia J. Rainey Center. (2) Carrsville precinct: Polling place-- Carrsville Volunteer Fire Department. (3) Walters precinct: Polling place Walters Ruritan Building. (4) Zuni precinct: Polling place -Zuni Ruritan Building. 16 (5) Raynor precinct: Polling place -Mt. Sinai Baptist Church 14165 Racetrack Road, Ivor, Virginia (b) Windsor election district. (1) Windsor precinct: Polling place Windsor Volunteer Fire Department. (2) Orbit precinct: Polling place Woodland United Methodist Church Social Hall. (3) Courthouse precinct: Polling place -Isle of Wight Ruritan Building. (c) Hardy election district. (1) Pons precinct: Polling place -Mt. Tabor Church of God and Christ 13468 Waterworks Road Smithfield, Virginia (2) Rushmere precinct Polling place Rushmere Volunteer Fire Department. (d) Smithfield election district. (1) (1) Smithfield precinct: Polling place Smithfield Center. (e) Newport election district. Carrollton precinct: Polling place Carrollton Nike Park. (2) Bartlett precinct: Polling place Carrollton Ruritan Building -14138 Norsworthy Drive, Carrollton, Virginia (6- 24 -71, 2; 5- 20-81, 2; 4- 25 -91, 2; 8- 18 -94; 4- 15 -99; 5 -3 -2001, 2; 11 -21- 05;2 -13- 07;12 -5- 08;1- 22 -09.) The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Chairman Clark called for a public hearing on the following: 17 Public forum to allow for public comments and questions about the Charter Communications cable service to determine what requirements are needed in order to renew the Cable Services Franchise held by Charter. Interim County Attorney Burton advised that the existing franchise with Charter Communications is ready to expire and that staff has received correspondence from Charter Communications indicating a desire to renew the franchise. He advised that the process is a combination of both Federal and State law as to what steps are required in order to move forward to renew the franchise. Attorney Adrian Herbst outlined the process and steps required to renew the existing non exclusive franchise with Charter Communications which ends in August of 2010. He advised that Charter issued a notice to the County in January of 2008 indicating that it would like to renew its franchise. He advised that the Board must find that there has been satisfactory service and performance by Charter since the original franchise; that Charter has complied with all of the terms and conditions of its existing franchise; and, that Charter has the financial, legal and technical qualifications to obtain a new franchise with the County. He advised that the County has the right to identify the future needs and requirements of this community. He advised that Charter can request that the County negotiate a franchise with them, but that all Charter has done to date is to request that the County renew its franchise and that once Charter does that, the County has 45 days within which to negotiate a franchise or Charter can request that the Board adopt an ordinance and the process is completed within a timeframe of 120 days. He recommended that information pertaining to Charter's past performance and future needs be gathered and that the County negotiate with Charter a new franchise and develop an Ordinance cable franchise. He explained that the ordinance does not only apply to Charter Communications, as it sets the ground rules for anyone else who would like to provide similar services in the County. He advised that the County needs to obtain certain financial, technical and operational information from Charter Communications. He stated the purpose of the public forum tonight is to invite citizens that might want to make comments to the Board about cable services. He advised in addition to the forum, he is suggesting that there be a survey conducted to random households in the County to respond and provide information back to the County. He advised that the renewal report is the end result of the gathering of information from Charter, staff and the County's citizenry. He stated that an outline of the process will be provided summarizing the information that has been gathered; the County's requirements will be identified; an Ordinance will be developed for cable franchise for County review; and, it will be negotiated with Charter Communications. He advised that the County has the right to specify what a cable provider will provide in a community and community benefit requirements such as public educational and government access channels and services to public schools and libraries in the County. He advised that a franchise can be for a period of fifteen (15) 18 years and that the County can seek financial support for the public channels. He advised that with respect to franchise fees, in the past the County received 5% of the gross revenues from the cable provider for the rental of the County's right -of -way; however, this is by law no longer paid to the County and instead now goes to the State under a communications service tax which is lumped together with other types of utility taxes and presumably the State is suppose to pay it back to the County. He stated that the County can now adopt customer service standards and be able to enforce those requirements and the County can require the cable service provider to comply with construction standards with the right-of-way to ensure that it is not unsightly and that it does not interfere with other uses of the County's right -of -way and establish requirements to enforce and administer the franchise. He advised that the rates and charges are not something that the County can control any longer and that the County can not decide specific programs, but it can outline broad categories of programs and services. He advised that the County can not demand or design their system or their transmission technology and they have certain rights to modify their franchise if it is financially not feasible for them. He stated that the County does have the right to negotiate with the cable service provider that the design of the system is such that it has a capacity to meet future needs of the community. He advised that Interim County Attorney Burton possesses a process outline and timeline for the Board's reference in development of the renewal report and negotiating a new franchise agreement with Charter over a reasonable amount of time. Responsive to Chairman Clark's inquiry about the possibility of another cable company other than Charter Communications providing cable service in the County, Attorney Herbst advised that there is a presumption of renewal and that the County has the burden of concluding with concrete evidence that the four (4) findings discussed earlier have not been met before the Board can deny a franchise and that by having a master Ordinance, it establishes the guidelines for others that may be interested in providing cable service in the County. He explained that if the County and Charter Communications can not come to a conclusion, there is an administrative hearing process to determine whether or not there is a basis for the decision made by the County to deny. Supervisor Wright inquired if it is possible to impose a requirement on the franchise with respect to the number of homes that must be served within a certain distance. He commented that the County is rural in nature and may only have two (2) homes in a one (1) mile radius, but those homeowners may wish to have cable service. He expressed a desire for all County residents to have access to cable, if they so choose. Supervisor Bradshaw commented that Charter Communications has not been cooperative in the past with respect to expanding the cable service in the County. He noted that Charter Communications has also not provided the 19 County with a map illustrating where the service is being provided in the County, although the Board has requested it. Attorney Herbst advised that Charter Communications is required by law to provide a map of its service area as requested in the letter from the Chairman, a copy of which is included in the packet supplied by the Interim County Attorney. Supervisor Bradshaw commented that he wants the entire County to have access to cable service. Attorney Herbst advised that with respect to build out, the law states that the County can require build out to 30% of the community within a certain number of years; 50% within a certain number of years; 70% within a certain amount of years; and, after ten (10) years, up to 80% of the community. He advised that the Federal Communications Commission has adopted franchising orders which addresses the issue of build out and provides reasonable build out requirements. He advised that if the cable provider has market success in the area that it is providing service, then the County can require that they extend their cable system. He stated the second factor involves whether or not it is reasonable to require Charter to extend service to an area where there are only two (2) homes that will subscribe to the service. Supervisor Bradshaw commented that the County and the cable service provider could possibly collaboratively work together to determine the cost and whether or not the County could fund a portion of that cost. Chairman Clark called for persons to speak in favor of or in opposition to the cable service provided by Charter Communications under the existing franchise agreement with the County. David Rice, 205 Jefferson Drive in Smithfield, spoke in favor of the internet service provided by Charter Communications. He commented that the television service is not up to par, however, particularly with respect to high definition. He stated that currently only Channel 3 is in high definition and that he can not receive NBC, ABC or FOX. He commented that he is paying more money for less services than those received in Newport News or Hampton. Chairman Clark closed the public hearing and called for comments from the Board. Chairman Clark commented that staff contacted Cox when Charter Communication's franchise expired with respect to Cox providing service in the County, however, the County's invitation was declined. He inquired if there are other options available. 20 Attorney Herbst advised that due to current economic conditions, competition has slowed down; however, Charter does realize that there will again be competition in the future. He stated that the revenue stream differential itself has made competition much more attractive than in the past. He suggested that the Board could invite Verizon or some other company in this area to see if they do have an interest and lay out exactly what the County is looking for in its renewal report. He advised that one (1) of the biggest movements occurring today is municipal broadband and many local governments are beginning to develop their own broadband systems either themselves financially or by developing a joint partnership. County Administrator Caskey requested that the Board keep in mind that the Towns of Smithfield and Windsor also have franchise agreements with Charter Communications. Attorney Herbst noted that he would need to review the separate franchise agreements with the Towns to see if they could possibility be bundled together with the County's. He stated with respect to the critical issues of density and build out, the Board will need to discuss how that can be done with a technical person so that the County is on level footing with Charter Communications. He stated if there are distance requirements in the County, there is the possibility of interconnecting areas through a microwave -type system or some other creative solution. County Administrator Caskey inquired if there could be a lapse of service if the Board chooses to terminate its franchise with Charter and go with another franchisee. Attorney Herbst advised that there could be a lapse of service and that only one (1) out of 1,000 communities have actually proceeded down that path as the matter is normally resolved beforehand. He advised that if the County does have complaint issues, customer service problems or violations of the County's ordinance, the Board must provide Charter with a notice and an opportunity to cure those issues; otherwise, it can not be used as a legal basis to deny Charter. Chairman Clark moved that the County Attorney and County Administrator work in conjunction with the County's consultant and bring back a report at the Board's February 19, 2009 meeting with respect to a course of action. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Supervisor Clark moved that staff be directed to reconstruct the complaints that the County has received with respect to Charter over the last five (5) years and staff begin documenting any complaints forthwith. The motion was adopted by a vote of (5 -0) with Supervisors Bradshaw, Brown, 21 Casteen, Clark and Wright voting in favor of the motion and no Supervisors voting against the motion. Chairman Clark advised that the Board of Supervisors' meetings are now on CDs and available at the various libraries. I/ At 7:45 p.m., Supervisor Bradshaw moved that the Board adjourn its meeting. The motion was adopted by a vote of (5 -0) with Supervisors Brown, Bradshaw, Clark, Casteen and Wright voting in favor of the motion, and no Supervisors voting against the motion. Carey lls Storm, Clerk 22 Stan D. Clark, Chairman