2400 Washington Avenue

PRESENT:       Joe S. Frank; Madeline McMillan; Sharon P. Scott (arrived at 2:55 p.m.); Joseph C. Whitaker; Charles C. Allen; and Herbert Bateman, Jr. -- 6

ABSENT:        William F. Haskins --1

OTHERS PRESENT: Randy W. Hildebrandt; Stuart E. Katz; Mabel V. Washington; William Mitchell; Alan Archer; Butch Blanks; Allen Jackson; Sheila McAllister; Al Riutort; Lisa Cipriano; Rhonda Sturgis; Lynn Sugg; Rich Caplan; D. Thomas Wessells; John Schmied; Eileen Leininger; Alan Krumm; Cathy Matthews; Collie Owens; Robert L. Freeman; Laurel Freeman, Jr.; Laurel Tsirimokos; Jeff Stodghill; Beverly Diamonstein; Sabine Hirschauer; Lottie Vincent; Cleder Jones; Kim Lee; and Jennifer D. Walker

            I.          Hilton Village Architectural Review Board Appeal

                        Mayor Frank explained that State law required City Council to hear appeals from aggrieved individuals based on action taken by the Hilton Architectural Review Board. He introduced Mr. Stuart Katz, City Attorney who introduced Ms. Lynn Sugg, Senior Assistant City Attorney, to outline the procedure to be used for City Council’s first appeal.

                        Senior Assistant City Attorney Sugg stated the appeals case was based on a 2004 Virginia Supreme Court case “Norton v. City of Danville.”   The case determined that a decision of an Architectural Review Board should be upheld unless it was determined to be arbitrary and unreasonable. In the case “Norton v. City of Danville” it was determined that a legal presumption existed that the Architectural Review Board’s decision was reasonable; however, that presumption could be rebutted upon showing by the property owner that the decision was unreasonable. In light of the principles of the case “Norton v. City of Danville,” the City felt it was best that the appellant, Mr. Wessells present his case first by showing that the decision of the Hilton Architectural Review Board (Board) was arbitrary, unreasonable or against the law. He would be followed by a representative of the Department of Planning who would present their case showing that the decision was reasonable. After all the facts were presented, a member of City Council would make a motion to overturn the Board’s decision, or make a motion to uphold the board’s decision according to the facts and evidence. Either motion would be accompanied by a statement as to what evidence that won or supported the Board’s decision: reasonable or fairly debatable, or unreasonable or not fairly debatable. After the motion had been made and seconded, followed by discussion, Council would then follow its usual voting procedures.  Attorney Sugg noted, according to the State Code,

the decision by City Council could be appealed to the Circuit Court as long as it was done within 30 days of City Council’s decision.

                        Mayor Frank pointed out this was a Special Meeting of City Council called for the purpose of the hearing and noted that voting was appropriate. He introduced Mr. D. Thomas Wessells, D.D.S., and invited anyone else present to speak on Mr. Wessells behalf regarding the issues and why he felt the Hilton Architectural Review Board was wrong in its decision. 

                        Mr. Wessells stated he grew up and once owned a house in Hilton Village that he restored. He stated he worked with the Hilton Architectural Review Board to get a satisfactory conclusion on details and such for the house. He noted the property at 10349, 10351, and 10353 Warwick Boulevard that he was presently working on, was originally owned by his mother and father in 2001. His explained his mother had been sick for many years and did not maintain the property which caused its deterioration. He finally took the property over and invested close to $100,000.00 in renovation costs. He was trying to delineate the fronts of the properties in such a way that made more sense. This predated the issue and added to the point he was trying to make relative to the issue. He offered a rendering of the property (Exhibit A) and explained a hallway was taken out and a display window and door were installed. The doors ended up next to each other, and in an effort to make the appearance of a separate business he wanted to put a porch roof over the door. He then approached the Board for approval. Drawings were presented and Mr. Wessells was told he needed to come back to the next meeting with slightly altered drawings because the Board wanted a different bracket. The Board also wanted him to do an interpretation with a rounded vault on it. He came back to the next meeting of the Board with the interpretations and, at that time, was told nothing about those drawings except that he needed to consider a treatment that Mr. Stodghill had drawn up in the guidelines. Although, it was nothing that he was interested in, he inquired of a contractor and found out it was going to cost $7,000 to do the treatment noted in the guidelines. The problem with it was that, if he followed the guidelines, columns would be in front of the doors and display windows, which made no sense and defeated the purpose of what he was about. 

                        Mr. Wessells stated he came back to the Board’s next meeting (third month) without having a formal request. This was an informal review at which time he spoke with Mr. Black, who was the Chair of the Review Board, to explain his problem. Mr. Black inquired of Mr. Wessells’ desires for the property.  Mr. Wessells replied he wanted the modified version he gave the board three months prior. He stated Mr. Black then assured him that he was not necessarily crazy about the request, but it was fine and going to happen, although it would not happen that evening because it was an informal review. Mr. Black suggested that Mr. Wessells come back in a month for a formal review and okay.

                        Mr. Wessells stated he came back to the next meeting of the Board and indicated there was heated debate and argument amongst the Board, where the members of the Board did not think it was a good idea, although Mr. Black had committed to it, and they postponed the matter for another month to decide what they wanted to do. Mr. Wessells came back to the Board’s next meeting (fifth month). He stated he was trying to start a business and was running very tight to the edge. He indicated, after receiving the informal okay from Mr. Black, the first time, he started building his porch roof. By the time he got to the fifth meeting, where it was voted down 3-2, he had finished the porch roof and to many people’s chagrin he went ahead and put it up. He felt he was trying to be a team player and it took five to five and one-half months to go through the process, which seemed like an onerous thing to have to go through. 

                        Mr. Wessells stated in fast forwarding to December 2006, he noted leaks in the roof of his property that were over the canopy roofs that he felt were underneath the windows, and they installed new windows. A roofer came in and decided the leaks were probably coming under the windows but there was no guarantee that the line that joined the canopy to the front of the building was not jeopardized. At one point, the idea of having to put flashing up to deal with the leaks was discussed. The problem that materialized was that they would probably have to remove some of the shingles. At this point, Mr. Wessells thought rather than patch the shingles, it would be more attractive to try and put asphalt shingles back up. He applied to the Hilton Architectural Review Board and was told that was not what the case was, that he could not do that, and that he had to put slate shingles up. Two different hearings were held on this and the issue came down to the fact that there were some hip roofs that did have slate originally and others only had asphalt shingles. He took issue with that and stated he would be glad to put asphalt shingles where they were before, but felt it did not make sense to put slate shingles where they never were. Mr. Wessells stated it turned out that it was stated in the guidelines that one had to install slate or simulated slate shingles. 

                        Mr. Wessells stated a lot of money was spent on the building in trying to keep it up. The rates were that if one were to put slate where recommended it would cost $7,100, which was basically to stop a leak. Simulated slate would cost $6,650 and asphalt shingles would cost $2,100. Three new windows were installed, in the interim, at the cost of $4,000, which, at this point, looked like it might have solved the problem. He stated the issue he had was that the Board took the position and said “this was just the way it was.” The Board’s unwillingness to work with him raised the question about the adjacent property. (Exhibit B) Mr. Wessells noted a copy of the September 2006 minutes of the Hilton Architectural Review Board where his neighbor, Mr. Epperson, applied for pretty much the same thing and was approved. Mr. Epperson’s roof abutted his; bear in mind he applied in December 2006. Mr. Wessells stated the point he wanted to make was that there was a tremendous amount of inconsistencies in Hilton Village. He offered

renderings noting inconsistencies throughout Hilton, such as windows, awnings, shingles, and the furniture in front of the Village Parlor. (Exhibits C – J).

                        Councilman Bateman inquired about one of the exhibits and wanted to understand whether Mr. Wessells was deviating from his project by noting inconsistencies with other properties in Hilton. Mr. Wessells replied his issue was to do just what Attorney Sugg said and stated the inconsistencies led one feeling that there was some type of prejudice involved with the project. There were lots of properties with violations within the same block that had not been enforced and were allowed to continue; some were pretty blatant. Then his next door neighbor was approved for one type of shingle, and he was left to spend money on slate shingles to the tune of $5,000 more. As a businessman that was a hard thing to do. There were two things, one was the money and the other was the process in that it had taken months to work through. In principle, Mr. Wessells was in favor of Architectural Review Boards; however he recommended, specifically in this instance, that the idea of having to replace slate over old asbestos shingles or asphalt shingles be reconsidered. He felt this was a problem and did not add to the health of Hilton. The Hilton Village Commercial Area Master Plan on page one, described the Board’s job as “recommending design standards in commercial areas and provided suggested standards and guidelines for streetscape improvements.” He interpreted that language as not being a written law but as a suggestion. It was not something that was final and locked one down. Mr. Wessells had an issue with the way it was handled and it seemed heavy handed and arbitrary. He welcomed any questions from City Council.

                        Councilman Bateman inquired whether Mr. Wessells’ roof, where the leak was located, was originally constructed with asphalt shingles. Mr. Wessells replied it was originally constructed with asphalt shingles and had never been slate. 

                        Councilman Bateman inquired whether it was asphalt because it was added onto. Mr. Wessells replied yes all were added onto. Mr. Wessells noted a rendering that showed the architects interpretation of what the front would look like. The problem with the rendering was that anyone who had the original hip roof and brought it out, as suggested in the rendering, would have to renovate the whole interior, in his mind, in order to make it work, because things did not line up, although he was not an architect. That was not just at his place, but throughout Hilton. He tried to argue that case and was told that was not the case. He encouraged the Board to become more flexible and, at least where this piece was concerned, go back to the drawing board to see whether they could come up with a more viable plan that allowed for the spirit of the architecture to remain like it was. At the same time it was practical in a sense that it could be done and it also was not tremendously expensive.

                        Councilman Whitaker inquired whether Mr. Wessells was required to use real or synthetic slate and whether the Board was asking for either. Mr. Wessells replied he asked for asphalt shingles on the low part and real slate on the hip roofs. The Board was asking for either the real slate all the way across or the real slate on the hip roofs and the simulated slate going across. Either way it added an additional $4,000 - $5,000 to the project.

                        Councilwoman McMillan inquired when the current asphalt roof was put on the building. Mr. Wessells replied he took over the property in 2001and guessed it was installed sometime before his father’s death in 1983.

                        Councilwoman McMillan inquired about the type of roof Mr. Wessells neighbor had, prior to its recent replacement.   Mr. Wessells replied his neighbor had old asphalt shingles.

                        Mayor Frank inquired whether the issue before City Council was simply the roofing material and whether the window matters Mr. Wessells spoke about had already been resolved. Mr. Wessells replied the issue at hand was the roofing material and the windows had been agreed upon and installed.

                        Mayor Frank inquired whether Mr. Wessells was asking City Council to determine whether the requirement of the Board was to install slate on all of the roof – the hip and the overhang part – or slate on the hip and simulated slate on the overhanging portion. Mr. Wessells replied yes that was what the Board was suggesting, but he preferred the slate and the asphalt shingles. He indicated the requirement was spelled out in the guidelines, but his issue with it had much more to do with how this was managed and the process of it. As the Attorney said it led one with the impression that some how, and he did not know how, it was discriminatory in how these things were enforced because the renderings and their exceptions were all within one block and all within the last two to three years. He noted canopies like his that went all the way down the block that had asphalt shingles on them that had been put in within the last two years, and no one had taken issue with them.

                        Mr. Carlton Hardy spoke in support of Mr. Wessells, and noted he had been doing property management on these properties since 2001. He stated he owned two properties in Hilton himself, and noted he had gone through the application process, with the Board, on several occasions. He had not always agreed with the Board, but indicated they worked around issues and accomplished matters. However, he felt it was necessary to support Mr. Wessells on this issue. If there were consistent policies about slate being on canopies, that were not part of the original structure, it would be okay. But now there was slate that had been covered up with asbestos shingles. He stated the

inconsistencies in Hilton Village were numerous and maybe they came with the fact that Codes Compliance was not enforcing what the Board sent to them. Somehow or another it was being lost. He stated it was also difficult to budget for improvements and repairs in Hilton, due to the age of the structures. It cost more to work with the wood, and to buy window replacements because most of the windows were not standard size. Now, they were required to install slate, rather than asphalt roofs. Mr. Hardy stated the average rent in Hilton was not very high. Rents averaged anywhere from $950 to $1150, and $12 a square foot. When you factored in those costs, you did not have much money left over to put toward improvements.  There seemed to be too many inconsistencies. 

                        Mayor Frank introduced Ms. Sheila McAllister, Assistant Director, Department of Planning, to report on the matter.

                        Ms. McAllister stated Mr. Wessells came before the board to get permission to repair the shingles and the board gave him approval to repair the shingles, not to replace the shingles. She stated Mr. Wessells replaced the shingles, which was now a Code violation. She stated many of the building renderings submitted by Mr. Wessells were Code violations, and indicated that was something that would have to be dealt with by Codes Compliance. 

                        Ms. McAllister stated it was her understanding that Mr. Wessells came to the board in December 2006 to request replacement of his roof with architectural style asphalt shingles that included the entire roof. At that time, there were new members on the board and Mr. Wessells request was denied based on the guidelines and the fact that they wanted him to replace the roof with slate. Mr. Wessells came back to the board in February 2007 at a pre-designed meeting, which was not a formal meeting, asking the board what they recommended he do and what they would approve. The Board discussed it and, based on those discussions, Mr. Wessells was told he could replace the gable with slate. He came back to the Board in April 2007 and requested permission to replace the gable with slate and replace the addition with asphalt shingles, as opposed to synthetic slate shingles. That was the history as she knew it.

                        Ms. McAllister stated the issues before City Council was whether or not the Board was illegal or arbitrary in their action by requiring Mr. Wessells to follow the guidelines. The Board was required to enforce those guidelines and they enforced the guidelines the best that they could. There were a lot of owners and situations where one did not have to get a building permit and re-roofing a building was one of them. The requirement was to get a Certificate of Appropriateness as opposed to a building permit.  

                        Ms. McAllister stated that decisions of the Board could be appealed by any agreed party to the City Council setting forth the alleged illegality of the action of the

Board. The Board’s decision to deny Mr. Wessells’ request was because it did not meet the requirement of the Hilton Village Homeowner’s Guide, Section III(E))(8)(b)(2)(a)&(b). She stated Mr. Wessells was appealing the Board’s decision to deny his request to replace asphalt shingles on the canopy of his properties located at 10349, 10351 and 10353 Warwick Boulevard. He contended that he should not be required to adhere to the guidelines because of the additional costs associated with the roofing materials required and because of other examples in the district where asphalt shingles were used. Ms. McAllister contended that the Board and the Guidelines were the necessary keys to ensuring the historic integrity of the buildings and maintaining the historic district. The roofing material established the period in which the buildings were constructed and was important in maintaining the integrity of the buildings, in accordance with the Secretary of the Interior’s standards on the preservation of historic properties listed in the National Register of Historic Places. The Board acted in accordance with their guidelines, and they were the gatekeepers of the historic district. Therefore, Ms. McAllister and City Manager Hildebrand recommended a motion to deny Mr. Wessells appeal to use asphalt shingles, as a visible roof covering. (A copy of the motion is attached and made a part of these minutes.)

                        Councilwoman McMillan stated she remembered when City Council created Hilton as an historic district, and there was a concern regarding enforcement of the guidelines. She understood, perfectly, what was in and said about the guidelines, what must be done and people abiding by the guidelines, but indicated, when you looked at the inconsistencies in the renderings, not to mention when you walked through Hilton, one questioned how were the violations being taken care of. She inquired whether Mr. Wessells’ neighbor had been cited for installing an asphalt roof, since its installment in December 2006, and what was being done to respond to Mr. Wessells’ argument about his case. Everyone was getting away with violations, and Mr. Wessells was the one being pushed to the curb. She inquired how that was being handled, because arbitrary was the key word in this instance. Ms. McAllister replied that Mr. Wessells would probably fall in that same category and noted there were several owners in the Hilton area that ignored the Board. She stated the Board denied projects and property owners went ahead and did their projects. She was not sure whether Mr. Wessells’ neighbor had been cited but, guaranteed that several owners would be cited based on Mr. Wessells appeal.

                        Mayor Frank inquired about whose responsibility it was to notify Codes Compliance when the Board denied a request or issued a Certificate that was not complied with. Ms. McAllister replied a member of the Board would contact their Planning staff representative, who would, in turn, contact the Department of Codes Compliance.

                        Mayor Frank inquired whether anyone had contacted the Department of Codes Compliance about violations in Hilton. Ms. McAllister replied she new it had happened in certain instances.

                        Mayor Frank stated it seemed to him, that irrespective of what City Council found with regards to Mr. Wessells application, there was a process to assure that the historic character of Hilton Village was to be recognized and enforced. The evidence from the photographs noted the City was not doing its job, which should be evenhanded and equally applicable to everyone and not to one person or another. He inquired of the plan to see that violations noted by Mr. Wessells were corrected.   City Manager Hildebrandt replied he would look into the matter and report back to City Council.

                        Vice Mayor Allen inquired about the date that Hilton was enacted. Ms. McAllister replied it was enacted in 1969 with the Board actually coming about in 1972, which was allowed by a charter amendment. 

                        Mayor Frank inquired about who promulgated the Hilton Village criteria. Ms. McAllister believed that staff of the Department of Planning worked together with the Board members to come up with the guidelines, and the Board actually adopted the guidelines.

                        Mayor Frank inquired whether the guidelines having been originally promulgated to the 1960s deserved some type of review. Ms. McAllister stated the guidelines were reviewed each year, and noted this particular issue was amended by the Board in 2002. She stated prior to the amendment made in 2002, the guidelines stated if one had to replace the roofing material it had to be replaced with slate. In 2002, the Board amended the guidelines to give property owners some relief in that if the roof was an addition and was not part of the original structure, some other type of material could be used such as synthetic slate, but not asphalt.

                        Mr. Wessells asked that the September 2006 minutes of the Hilton Architectural Review Board regarding Mr. Epperson’s request be clarified. He felt Mr. Epperson was not in violation because he did not do anything that was not approved by the Board.

                        Mr. John Schmied, Chairperson, Hilton Village Architectural Board, stated that the Board did not enforce Code violations. He explained that any resident of the Hilton area could report a Code violation to the Department of Codes Compliance.   Mr. Schmied stated with respect to Mr. Epperson’s roof replacement, the September 6, 2006 minutes of the Hilton Village Architectural Review Board reflected that he questioned Mr. Epperson about the slate he was going to use for his roof. He stated Ms. Keator informed Mr. Epperson that Vermont slate should be used to make the repairs.

Mr. Epperson stated he would make certain that the contractor used the correct slate. (A copy of the September 6, 2006 minutes of the Hilton Architectural Review Board is attached and made a part of these minutes.) Mr. Schmied stated that Mr. Epperson received an approval for slate, and if that was not accurately reflected in the Architectural Review Board minutes or documents, then someone obviously made a mistake, because they had talked about slate the whole time. He also asked City Council to consider whether the Board was being arbitrary or whether enforcement was arbitrary when looking at the renderings provided by Mr. Wessells. He stated the Board was not arbitrary in its decision. He agreed that Code enforcement was arbitrary in that he had received bad and good responses from the Department of Codes Compliance.

                        Mayor Frank stated he was not clear in whether Mr. Schmied was saying what was written in the minutes was an accurate transcription of what took place at the meeting, or was he saying that the words used in the minutes did not accurately reflect the Board’s desire. Mr. Schmied replied he did not think the minutes were fully accurately correct. He stated the minutes were just guidelines and were not word for word.

                        Mayor Frank stated it was his understanding that for City Council to reverse the decision of the Board, it must be determined that the Board’s action was arbitrary and unreasonable. It seemed to him that if the Board followed the guidelines, they were not arbitrary and unreasonable. City Attorney Katz agreed with that 100%.

                        Mayor Frank stated, if that were the case, City Council had no other choice but to uphold the position of the Board. City Attorney Katz stated the Virginia Supreme Court stated there was a presumption of reasonableness or correctness of the decision of the Board. He stated the burden shifted to the property owner in this case, Mr. Wessells, to rebut that presumption and City Council needed to decide whether Mr. Wessells had met that burden of proof. 

                        Vice Mayor Allen moved that City Council affirm the decision of the Hilton Architectural Review Board which denied the request of Mr. D. Thomas Wessells, Jr. to replace old asphalt shingles with new asphalt shingles on the canopy addition of his properties located at 10349, 10351, and 10353 Warwick Boulevard in the City of Newport News; seconded by Councilman Whitaker.

                        Councilwoman McMillan stated she did not want to question the integrity of the Board and did not believe they were acting in an arbitrary manner by trying to enforce the guidelines set in front of them. However, she understood Mr. Wessells position when he looked next door at someone who did not obey the guidelines, and was subsequently reported, and the guidelines were not being enforced. If it was the City’s

responsibility to do the enforcement then, perhaps, there should be some discussion with the City Manager about the process so that citizens like, Mr. Wessells, do not feel as though they are being discriminated against when other residents of Hilton Village are being allowed to do things that were out of compliance.

                        Vice Mayor Allen indicated the argument of an observance of someone breaking the law was not an excuse to break the law.  

                        Mayor Frank agreed with Councilwoman McMillan and felt the Board had properly developed a set of guidelines and principles by which architectural changes could be made. It seemed the Board applied that to Mr. Wessells application and that deemed it not arbitrary or unreasonable. However, on the other hand he felt that Mr. Wessells certainly had a grievance in that if you walked down the street and looked at the façade along Hilton Village one would notice a variety of windows, doors and canopies that were not uniform and did not appear to have the appearance that City Council hoped to have along that corridor. He felt that was a problem, either with Code enforcement or communication between the staffs of the Departments of Codes Compliance and Planning and the Board. He asked the City Manager to follow up on the matter. He stated people should have an expectation of consistency and reliability when they dealt with bodies appointed by City Council. To be an owner and find that someone next to you was doing things one way, while others were being allowed to do things another way and you had to do it a third way did not give anyone much confidence in how business was conducted. While he had to, based on the court case and rules put before City Council, support the fact that the Board was not arbitrary and unreasonable, he felt enforcement left much to be desired, based on the evidence heard. He did not feel that Mr. Wessells had overcome the burden of showing that the Board was arbitrary and unreasonable and, for that reason, would support the motion.

                        Councilwoman Scott inquired whether City Council would go back and address the Code violations of the other property owners, in Hilton, if it upheld the Board’s decision against Mr. Wessells. Ms. McAllister replied yes. Mayor Frank replied the City Manager would have to instruct the Department of Codes Compliance to address the violations.

                        Councilman Bateman appreciated Mr. Wessells sharing his experience with City Council. He was looking for some type of remedy, although he agreed with what was said, in citing the fact that there were other property owners that were not in compliance with the requirements of the Board. He suggested that the Board and Codes Compliance be on the same page. He understood staffing levels were low in Codes

Compliance to handle everything, but felt a special initiative should take place in the Hilton area, to collaborate with the Board, to ensure that such a situation did happen in the future.

                        City Manager Hildebrandt felt the City was going to spend much time in court once it cited property owners in Hilton, because property owners would not voluntarily tear-up their improvements. He indicated there would be a negative outcome when the City went through the process of determining who had actually violated the Board’s decisions.

                        Vote of Roll Call:

                        Ayes:    Frank; McMillan; Scott; Whitaker; Allen; Bateman

                        Nays:   None

THERE BEING NO FURTHER BUSINESS ON

MOTION COUNCIL ADJOURNED AT 3:10 P.M.