September 25, 2015 § 1 Comment
This article is a two-part Herndon story. In the first part, it shows how the Town Manager with, I believe, the tacit or express approval of the mayor, tried to restrict a councilmember’s access to downtown planning documents, and hinder his ability to ask questions, conduct appropriate inquiries and inform our citizens. The second part documents how the town staff, working behind the scenes with consultants and principals of the Herndon Foundation for the Cultural Arts made important changes to the Downtown Master Plan (DPM) shortly after it had been approved on February 22, 2011. Using the pretext of creating a new sketch for the Art Center, they enlarged the footprint of the Art Center, increased its number of stories, and tried to make other important changes out of the glare of the public eye. Their emails show that over a period of five weeks of intense engagement with the town staff, they gave scant thought to the financial impact of their ideas.
The former mayor Steve DeBenedittis and some of the councilmembers had no inkling of these extra-ordinary, outside the established regulatory process, contacts. It appears as if the then-mayor and councilmembers did not matter at all.
1. ATTEMPTS BY THE TOWN MANAGER TO RESTRICT A COUNCILMEMBER’S ABILITY TO SERVE OUR CITIZENS
For an extended period of time, I have been reflecting on the development of the DMP. The Town had undertaken the planning process, because our citizens had rejected 50 feet high (or, taller) buildings and wanted to maintain a small town feel. Yet, after about 5 years of planning exercises, not much had changed. Among other things,
• The Art Center, for years a matter of great controversy, remained where it was originally slated to stay,
• The municipal Parking Garage stayed where it was always supposed to be,
• With a few exceptions, all buildings can now be as high as 54 feet high (64’ if structures above the base of a parapet wall are included) and contradict the small-town feel,
• The regulatory document (called the Pattern Book) that was supposed to conform to the vision of the town as reflected in the DMP (approved in 2011), but does not.
How did this happen? In my quest to find answers, I reviewed all of the available documents created by the staff, examined the minutes of all Town Council work sessions and public hearings, and conducted an in-depth review of the literature on Form Based Code.
Then, about a month ago, I put in a request to conduct a “file review” of the Downtown Master Plan. I was particularly interested in examining documents from the start of the planning process in 2008 until shortly after the passage of the master plan in February 2011. Following the usual procedure, I browsed the documents at the Herndon Municipal Center (HMC) and asked the staff to scan the designated pages for me. A little later, I put in another request for asking the staff a few yes/no questions about the contents of the Pattern Book.
Following these requests, the Town Manager wrote an unexpected series of emails after sending me the scanned information. He moved to restrict my ability to receive information from the staff and to review documents in the future. His actions were contrary to the long-established policy to help councilmembers do their legislative duties and provide constituent service. Among other things, he asserted that:
• Your questions cast doubts on the integrity of the process and staff, and that he would not allow me to talk with them unless I submit questions in advance.
• Your work “…does not appear to be the work of the town council but of your own interest”
• “Your request to copy documents should have been addressed as a Freedom Of Information Act (FOIA) request”
• “In the future, if the council desires the town to expend staff time on your interest, then you should raise the question to the council and at their direction the appropriate staff resources will be provided”
• “In the future unless your requests come at the direction of town council any request for information will be addressed under the Town’s FOIA guidelines.”
I responded by asserting that I disagree with the characterization of my work, because, day in and day out, it is focused on my responsibilities as a councilmember. I provided more insights by stating, “Among other things, I have legislative, investigative and fiduciary responsibilities as a councilmember, and I have a duty to inform our citizens. The copying in question had a lot to do with, for example, (1) motions I might make when the rezoning of the Ashwell property comes up in the near future, (2) evaluating PPEA issues related to the Art Center, the parking garage and other infrastructure improvements, and (3) informing our citizens about the discrepancies between the density as approved in the master plan and that approved in the Pattern Book … “
I continued by stating, “You may not know this, but our citizens are very interested in all of the issues mentioned above. Accordingly, this work, as much of my other work, is being done for them. The related information requests, therefore, are generally not subject to FOIA. You may seek the Town Attorney’s formal opinion in this regard in order to obtain appropriate clarifications before you implement your purported policy. Further, let me remind you that it is your duty to help councilmembers carry out their duties as they see fit and not as you think they should do their duties.”
I also supported my assertions by giving the example of the purchase of the Art Center property. I suggested that, “ If you ask some of the old-timers in the town, they would tell you that they knew the Town had paid way too much for the Art Spaces property in 2002, but did not know how it had happened. They greatly appreciated my article, because it made the Town Council’s decision-making process completely transparent. Many interested parties would like to assert that the system had integrity and that everything was above board. How wrong would they be? In a separate email I said, “I think you misunderstand me. I do not question the integrity of people or processes. I state the facts as I find them and let people make up their own minds…”
He did not respond to my claims; therefore, it appears that a “constitutional” crisis may be brewing in which the Town Manager, working behind the scenes in tandem with the Mayor, tries to hinder my (and, some other councilmembers’) ability to serve our citizens. They may slow me down a bit, but they will never be able to silence me.
Lets us contrast this behavior with the “royal” treatment accorded Mr. Richard Downer (Downer) and Les Zidel (Les) after the passage of the Downtown Master Plan on February 22, 2011 as documented in the attached emails (click to see the chronology of their emails).
2. TOWN STAFF’S INTERACTIONS WITH THE PRINCIPALS OF THE FOUNDATION IN MARCH AND APRIL 2011
The formal administrative process involving Planning Commission and Town Council work sessions and public hearings had come to an end on February 22, 2011. The stakeholders had many opportunities to submit their information and make their case in public. The town staff had also expressed its opinions about the information submitted by Foundation. Surprisingly, no one including the staff chose to highlight the size, shape or character of the art center in any of the public hearings. Instead the focus was on shifting the location of the Art Center from HMC to Block E – the current location of the Art Space. After Town Council’s approval, all the staff needed to do was revise the “sketch” for the art center in one of the illustrations in the DMP.
Lets take a look at the depth and breadth of their involvement out of the public limelight. Even the then-Mayor, Steve DeBenedittis, was completely unaware of this extra-ordinary involvement.
The town staff could have made the necessary changes without the involvement of the Foundation, but chose not to. By mid-March, it had decided to seek the approval of the Foundation before making any changes to the illustrated DMP. Via an email to her assistant Dana Heiberg (Dana) on March 21st, Lisa Gilleran set the wheels in motion by suggesting “… I think we need to work with Les and Richard D before we obtain any schematics for E…” Dana Heiberg immediately sent an email to Les to tell him, “…we need to place a footprint on Block E to represent the arts-associated uses center. Can you provide a footprint?”
Why they wanted to do this is beyond comprehension. The Foundation had already submitted their concepts and drawings in August to the PC. The material was already a part of the formal administrative record and had been available to the public for comments. Why would the staff open the books again to allow the principals to make more changes out of the public eye? The larger question is, “Why would they want to seek the advice and consent of those who had no background or expertise in planning, designing, developing or financing art centers?”
The administrative record shows that Messers Zidel and Downer had plucked many ideas out of the thin air (or, out of the WBL report) and had never worried about the costs. This interaction couldn’t have been expected to yield any thing other than some fancy ideas to spend more public dollars or create higher density. And, that is exactly what happened. The following issues arose during the 5-week interaction between the staff, consultants and Foundation principals.
ISSUE NO. 1 – What Should be the Footprint of the Building?
On March 22nd, Les replied back to Dana, “Glad to help .,. our initial concept is for a building much like the library to follow the shape of the lot. This building would cover about 85% of the buildable part of the block – about 20,000 sq. ft. on the ground. Since the theatre portion needs to be between 25-28’ in height, we see the building being about 35’ tall or 3 stories (with the first floor being about 15’ tall to accommodate gallery height and other studio spaces – sort of like a tall retail store. The other 2 floors would be about 10’ ceiling heights.” No one ever asked them how they had selected the design criteria or how the third and fourth floors would fit on top of the theater or how many arts-related offices could be built.
On April 13th, Dana informed them that, “…the footprint that you are looking at is about 16,000 sf. That means the building can be 32,000 sf on 2 levels, or, if the part of it that is not the theater goes to 3 stories you may be able to achieve something closer to the 38,000 sf figure. Food for thought.” This implied that the consultants had “accepted” the Foundation’s concept of the Art Center; however, its size seemed to have been increased again to 18,000 sf during the development of the Pattern Book under the 2012-2014 Town Council.
ISSUE NO. 2 – Should the Art Center Structure Have 3 or 4 Stories?
On April 13th, Les also restated his original idea that “…3 floors is probably right with non-standard heights. We will be looking to test the feasibility of a basement for storage and support space as well as mechanical.” However, the very next day, Mr. Downer objected to the plan by opining, “I strongly disagree with the three-floor designation …” Later he pleaded with them to “ PLEASE join me in suggesting the wording for Parcel E shown as “Arts/Associated uses on 3-4 levels (actual concept to be determined.)” Everyone, including the Foundation’s Board and other advisors fell in line and Mr. Downer’s suggestion was the official word on this topic.
It is important to note that at least until Oct 3, 2011, the DMP was based on the concept of “just 3 stories max for commercial and mixed use and 4 stories max for residential.” Those who served on the 2012 council remember that concept being discussed and articulated. However, in the final regulatory plan, as reflected in the Pattern Book, all mixed-use buildings with commercial on the first floor can now be 4 stories tall, or, 54′ tall up to the bottom of the parapet. Mr. Downer’s insistence on having up to 4 stories at the Art Center may well have planted the first seed for increasing the number of stories of mixed-use buildings.
It should also be noted that a 3-story Art Center building was supposed to provide up to 20,000 sf for arts related uses. However, if a 4-story Art Center is built, it will have up to 36,000 sf for arts space uses. This means the cost of building the art center will increase by as much as $6.4 million. In one of the presentations, the Foundation indicated that it would then rent the spaces to private parties and use the income to fund the art center’s operations.
This idea does not have much merit unless the Town is willing to hand $6.4 million to the Foundation. Under normal business practices, a developer would build and sell such units to private parties on his own accord. If the town were to permit a developer to build a four-story structure, the developer would be able to subsidize the cost of building the art center itself by about $600,000. (Please click here to view the article on the “Free” Art Center).
ISSUE NO. 3 – Should Pedestrian Bridges Between the Art Center and Town Green be Shown in the Sketches?
On April 14, 2011, Richard Downer initiated another issue by stating, “…I strongly feel that the pedestrian bridges from the Art Center to the W&OD and to the Parking Garage must be shown on the Illustrative Plan maps. Creating second floor/W&OD Trail level connectivity is vital to the success of our overall concept. Making it easy for folks to “flow” into and through the Arts Center and to the Parking Garage at the trail level, will be unique and vital to the Arts Center Café’ and terrace concept’s success. Of course the same connectivity needs to exist at the street level…” On April 27th, Richard raised this issue again.
Later in the day, Dana (and Lisa Gilleran and the Town Manager) finally made their decision. Dana communicated the decision by stating, “ I totally agree that there is a great opportunity to make pedestrian bridge connection, but specific trail connections and bridges will have to be considered at the arts facility concept design stage and will need to coordinate with the NVRPA as well. We can’t put graphic elements on the plan that the Town Council did not discuss and adopt. An arts/associated uses center is now a “feature shown” on the adopted Comprehensive Plan – that is a victory, because under the VA Code Section 2232 Review public hearing process will not be required as we move forward to facility concepts.”
The “feature shown” concept was never presented to the Town Council. Consequently, none of the councilmember knew that it could be used to avoid public hearings on the design of the facility concepts at a later date. It was very troubling to discover that the staff would consider the avoidance of public hearings a “victory”. Indeed, it was a victory for those who want to hide important things from the public.
Further, what is noteworthy is that Mr. Downer did not even mention the cost of the bridges in his emails. In today’s dollars, using the information from the WBL study, the two bridges across the W&OD trail would likely cost more than $1 million. And, the bridge access to the garage would cost a substantial amount as well. Mr. Downer left the costs to be discussed by others.
ISSUE NO. 4 – Should Vine Street Extension Be A Street or An Alley?
By April 12, the staff and the Foundation were thinking of converting the Vine Street (extended) into a walking alley. If the Ashwell property purchase did not materialize (in the future), the municipal garage would need to be located on the existing lot at the corner of Center and Vine streets. This placement of the garage would have encroached on Block E slightly and possibly made the art center footprint slightly smaller. The Foundation, however, would rather convert the Vine street extension into a walking alley than reduce the footprint of the art center. On April 12th, Dana communicated the alley concept to the consultants.
The reaction from the consultants was swift and strong. Next morning (April 13th) they wrote back and said, “There has been a suggestion that the new street linking Center to Station Street can be removed or turned into a pedestrian walk. We believe it is important to keep the new street in the plan for the future success of the downtown…” Among other things, they reasoned that the new street (1) breaks that large block into two reasonable blocks and connects key properties together, (2) will provide an essential vehicular and pedestrian approach to the garage for downtown users including restaurants and shops on Station/Pine/Lynn, the municipal center, etc. and (3) can be designed as a special street that can be closed off for festivals and special events. The Foundation backed off the idea of the alley once Dana forwarded the consultants’ objections to them.
Later that evening, Les wrote back to communicate that, (1) “Robin & I had a chance to study the new illustrative plan today. Richard has sent us an email with some of his suggestions but we have not formally met as a committee – that is scheduled for this coming Wed. Art (the Town Manager) came over today at lunch and he shared some of his ideas…”, (2) “Our Advisory Committee which includes Ted Britt, David Birtwistle, Bill Lauer, Grayson Hanes, and Mark Gibbs will be looking at practical solutions …” and (3) We are working with a DBI architect – Alan Hansen, who was a consultant to the Wilson/Buttler.” But for the timely intervention of the consultants, the Vine Street Extension would probably have been converted from a street to an alley.
ISSUE NO. 5 – How should truck-loading area be configured?
On April 26, Dana Heiberg directed the consultants to change the configuration of the loading area by forwarding the following instruction:
“…Block E: (on the main sheet and the options sheet) The Town Manager directs the reconfiguration of the vehicle load-in area to eliminate the curb cut on Center Street and eliminate the small parking/loading area on that portion of the block in favor of something along or off of Vine Street extended. It was emphasized that this does not need to serve tractor trailers or large trucks, more like vans and small box trucks.” (Emphasis Added)
It is indeed strange to find that the Town Manager is involved in reconfiguring the truck loading space. I do not believe it is his job to do so and that the requisite expertise probably lies with the town staff.
In summary, this two-part story can be interpreted in a myriad of ways, but it is reasonable to reach the following conclusions. Part 1 of this article suggests that if somebody tries to look into the details of government decision-making processes, those involved in making decisions will feel threatened and will put up stiff resistance even to elected officials. The degree of resistance will be greater, if the decision-makers are naturally inclined to keep things under wraps or if they have already made decisions without consulting other elected officials. Part 2 of this story suggests that working behind the scenes leads to sub-optimal decisions, undermines the authority of elected officials and disrespects those administrative processes that allow the public to engage meaningfully with the government. In other words, behind the scenes dealings undermine the time immemorial concept – “Government of the people, by the people, for the people.”
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 This town like many small towns has its Old Boys network that, more often than not, operates behind the scenes, and out of the glare of public scrutiny. The network has extraordinary formal and informal access to the town staff and its facilities. It can and does interject itself into the government’s decision-making process almost at will. Often, some politicians and town staff cater to the egos, ideas and whims of the major players within this network.
 It is well known that the mayor has been “on a mission” to restrict my ability to ask questions and do research for almost 5 years and that the Town Manager does not make any decisions without her tacit approval.
 Back in 2002, the Town retained a Boston architectural firm Wilson, Butler & Lodge, Inc. (WBL) to design an art center and develop a master plan for the area. WBL retained six firms to provide specialized expertise in zoning, geotechnical engineering, theater planning & design, video and television, capital and operating costs, and environmental engineering. The expertise of the Foundation’s principals in insurance, car repairs, and business administration was no match for the experience and expertise of WBL’s team; yet, Mr. Zidel’s hand drawn sketches had replaced the WBL’s design and were accepted by the staff.
 In comparison, the 2-story WBL 2002 design featured a 275 –seat “playhouse” theater with a 30’ high rigging loft. It contained 21,575 sf on the lowest floor and 7,446 sf on the second floor. The Auditorium/Stage for a 275-seat playhouse was slated to occupy 6,345 sf. The public areas consisting of a foyer, lobby, public restrooms, front of house storage, coatroom, box office, etc. were estimated to take up about 4,700 sf. A community room, stage production support spaces, performance support spaces were supposed to occupy about 7,800 sf. Finally, walls and structures, corridors, elevators, stairs, inaccessible shafts/attics/plenums and mechanical-electrical were estimated to take up about 10,000 sf. The combined footage of 29,021 would have cost, in 2002 dollars, $8.5 million
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