Minutes of a regular meeting of the Town Council of the Town of Marion, Virginia held in the Council Chambers of the Municipal Building on September 8, 2009 at 7:00 p.m.

PRESENT:  Mayor David Helms; Dr. James Gates, Eugene Hendrick, Suzanne Jennings, Bill Weaver, Mel Leaman, Jane Hale and Mark Warren, Council Members; Town Manager John E. B. Clark, Jr.;   Town Attorney Mark Fenyk; Police Chief Michael Roberts; Lt. Rex Anders; Town Engineer/Assistant Town Manager Cecil Hicks; Engineer’s Assistant Todd Long; Community and Economic Development Director Ken Heath; and Town Clerk/Director of Finance Dixie Sheets.

INVOCATION/PLEDGE TO THE FLAG:  Mrs. Hale rendered the invocation.  Mayor Helms led the Pledge to the Flag.

VISITORS: Jeff Spickard, Toby Bowen, Bob May, Robyn Akers, Linda Pennington, Wayne Pennington, Bob Ramsey, Mike Guy, Jeff Guy, Kenneth Burkett, Susie Burkett.

MINUTES:  Upon motion of Mrs. Jennings, seconded by Mr. Weaver and vote of 7 AYES and 0 NOES, the minutes of the meeting conducted on August 17, 2009 were approved as written and distributed.  Mrs. Hale, Mrs. Jennings, Dr. Gates, Messrs Leaman, Hendrick, Warren and Weaver voted affirmatively.

PROPOSED ORDINANCE ON ACCUMULATION ON PREMISES – PUBLIC HEARING:   The following document was presented for discussion and recommendation:   Engineer’s Assistant Todd Long stated that the purpose of the amendment is to give the Town more specific guidelines with regard to and enforcement of Section 38.1.   Sections 38.1 (a) and (c) remain in the Code and are unchanged by the proposed amendment.


BE IT ORDAINED BY THE COUNCIL OF THE TOWN OF MARION, VIRGINIA, that Section 38-1 Accumulations on Premises, Paragraph (a) and Paragraph (c) to remain as previously adopted, Paragraph (b) to be amended as shown below, and Paragraph (d) and Paragraph (e) should be adopted as part of the Town Code for the Town of Marion and the same is hereby amended and enacted as follows:

SECTION 38-1.  Accumulations on Premises.

                (b)  Clearing of vacant developed or undeveloped property.  The owners of vacant developed or undeveloped property located within the Town of Marion, including such property upon which buildings or other improvements are located , shall cut grass, weeds and other foreign growth on such property or any part thereof at such time  or times  as the governing body shall prescribe; or may, whenever the governing body deems it necessary, after reasonable notice as described in paragraph (a) above, have such grass, weeds or other foreign growth cut by its agents or employees, in which event the cost and expenses thereof shall be chargeable to and paid by the owner of such property and may be collected by the locality as taxes are collected.  The Town Council for the Town of Marion has deemed it necessary for the Public Health and Safety that all grass, weeds and other foreign growth on such property or any part thereof shall at no time be allowed to grow to a length of Fifteen (15) inches or greater.  Vacant land used for the production of hay or other agricultural uses are exempted.

                (d)   Violations of this section shall be subject to a civil penalty of $50.00 for the first violation, or violations arising from the same set of operative facts.  The civil penalty for subsequent violations not arising from the same set of operative facts within 12 months of the first violation shall be subject to a civil penalty of $200.00.  Each business day during which the same violation is found to have existed shall constitute a separate offense.  In no event shall a series of specified violations arising from the same set of operative facts result in civil penalties that exceed a total of $3,000.00 in a 12-month period.

                (e)  The Town Council for the Town of Marion has provided that such violations shall be a Class 3 misdemeanor in the event three civil penalties have been previously imposed on the same defendant for the same or similar violation, not arising from the same set of operative facts, within a 24-month period.  Classifying such subsequent violations as criminal offenses shall preclude the imposition of civil penalties for the same violation. 

State Law Reference- Authority for the above section, Code of Virginia Section 15.2-901 (1950, as amended).



Mayor Helms opened the Public Hearing.  Jeff Guy, 222 Cherry Street, was present to speak for the amendment to the Town Code of Marion, Virginia.  He presented photographs of a property near his residence that was unmaintained.   He stated that the condition of the property affects the value of area homes.  Mayor Helms closed the Public Hearing.    Mr. Long informed Council of the process when notifying a property owner of a violation.  Photographs are taken and a letter mailed allowing 15 days to act upon the letter.  If no action is taken, a warrant is secured and then proceeds to Court.  Some properties are found by Town staff and others are reported by citizens.

Upon motion of Mrs. Jennings, seconded by Mr. Weaver and vote of 7 AYES and 0 NOES, Town Council adopted the changes to the Town Code.   Dr. Gates, Mrs. Jennings, Mrs. Hale, Messrs Leaman, Hendrick, Weaver and Warren voted affirmatively.

RED BIRD TAXI- PUBLIC HEARING CONCERING THE SALE OF THIS BUSINESS:    This public hearing is being conducted due to the change in ownership of Red Bird Taxi Service.  Mr. Kenneth Wayne Burkett had filed an application for license and public convenience to operate the Red Bird Taxi Service in the Town of Marion at 207 Broad Street.  The business was previously owned by Josh Widener.  Chief Roberts stated that Mr. Burkett has complied with requirements of the Town of Marion and recommended a favorable review.  Lt.  Rex Anders advised that a background check of the new owners and drivers have been successfully completed.  He added that the new owners were employees of the Red Bird Taxi Service and are highly familiar with the operation.  Upon motion of Mr. Leaman, seconded by Mrs. Jennings, and vote of 7 AYES and 0 NOES, Council approved the application of Kenneth Wayne Burkett to operate the Red Bird Taxi Service. 

BIDS ON SOUTH MAIN STREET WATER LINE AND SCHEDULING START:  Mr. Spickard advised that the bids were opened on August 18, 2009 at 2 pm.  Three bids were received.   The apparent low bidder was Branson Construction, Inc. in the amount of $194,892 as the base bid and $9,884.06 with additive Alternate #1.  Mr. Spickard stated that a mathematical error occurred in the Additive alternate # 1 and that this portion will not be considered, at this time, but will be negotiated at a later date.  The Lane Group (architects for the project) recommended awarding the project to Branson Construction, Inc.   It was noted that the bid exceeds the available funding for construction.  Mr. Clark stated that the Town has secured a grant in the amount of $163,350 for this project.  The Town’s portion would be $36,542 and may be taken from the Water Escrow Fund.   The Town would provide the additional funding contingent upon Virginia Department of Health approval.   Upon motion of Mrs. Jennings, seconded by Mr. Weaver and vote of 7 AYES and 0 NOES, Council accepted the bid in the amount of $194,892, contingent upon Virginia Health Department approval.   Mr. Clark stated that bidders had expressed concern about the time limit.  They stated that they may run into issues with asphalt that late in the season.  Mr. Clark stated that according to the Town’s information, this is an area of high water loss.  Staff recommendation is to proceed with the project at the earliest possible date.   Dr. Gates, Mrs. Jennings, Mrs. Hale, Messrs Leaman, Hendrick, Weaver, and Warren voted affirmatively.

VDOT SCOPING MEETINGS ON TOWN PROJECTS:   VDOT Bristol District Planner/Urban Program Manager Donny Necessary requested a meeting to discuss the four (4) projects to be undertaken by the Town.  A tentative date of September 16 was suggested.  The four (4) projects are:  (1) Town Signal Project; (2) Chatham Hill Bridge Project; (3) Baughman Avenue Bridge Project; and (4) South Church Street “Drainage Only Project”.   Mr. Hicks reminded Council members that VDOT had earmarked funds, in the amount of $3.85 million for the widening of South Church Street.  These funds have been de-obligated and will be used to fund four (4) other projects for the Town.  A meeting is scheduled on September 16 at 9:30 a.m. at the Municipal Building. 

NOTICE OF COMMUNITY INFORMATION MEETING ON PEARL AVENUE/BUCHANAN STREET PROJECT – SEPTEMBER 16:  A Community Information Meeting on the Pearl Avenue/Buchanan Street has been scheduled for  9/16/09 at 5:30 p.m. in the Municipal Building.  All residents of Pearl Avenue and Buchanan Street will be advised of the meeting. 

UPDATE ON OLD SCHOOL PROJECT AND APPROVAL OF VARIOUS DOCUMENTS RELATING TO THE PROJECT:  Project Manager Toby Bowen, MRPDC, discussed the Construction schedule for the 1908 School House project (aka CDBG-R Project).  Mr. Bowen is scheduled to meet with DHCD next week to sign the contract.  Mayor Helms and Dr. Gates will represent the Town on the Committee.  It is anticipated that the project will be complete by December 2010.  Several required documents were reviewed and adopted by the Council at this meeting. 

Dr. Gates moved that the Fair Housing Certification and Resolution be adopted.  Mr. Weaver seconded the motion.  Council approved the same by a vote of 7 AYES and 0 NOES.  Dr. Gates, Mrs. Hale, Mrs. Jennings, Messrs Weaver, Warren, Leaman and Hendrick voted affirmatively.

Upon motion of Dr. Gates, seconded by Mrs. Jennings and vote of 7 AYES and 0 NOES, the following documents were adopted and approved by Marion Town Council: 

1)      Revised Project Budget

2)      Project Management Plan

3)      Local Business and Employment Plan

4)      Agreement for Grant Manager

5)      Programmatic Agreement between the Town of Marion and the Virginia State Historic Preservation Office


Mr. Bowen informed Town Council that Mayor Helms had already signed the following by authority of a resolution adopted June 1, 2009:

1)      Certifications and Assurances

2)      Non-Discrimination Policy

3)      Section 504 Handicapped Regulations

4)      Anti-Displacement Policy

UPDATE ON OLD PRATER LANE RAILROAD CROSSING:  A document from Norfolk Southern Railway Company was presented for review and recommendation.  The Agreement is the Acknowledgment form for Wire and/or Pipe Occupation within the Limits of a Public Right of Way.   The agreement states that Norfolk Southern Railway Company does not object to the installation of the facilities as requested by the Town provided the Town agrees to several conditions. Among the conditions are:   (1) “The facilities shall be installed, maintained, repaired and renewed by and at the sole risk, cost and expense of the Applicant”; (2) “The facilities must conform with all Federal, State and Local laws, rules and regulations and will not be attached to any railroad structure or appurtenance and will not be located on any private property of Railway; (3) Insurance requirements as stated by Norfolk Southern.  Mr. Clark reported that he had requested that a Norfolk Southern representative attend Council meeting and they declined.  He added that according to NS the agreement is the “agreement of record”.  Mr. Fenyk stated that NS had agreed to include a clause to limit the Town’s liability that is allowed by the Code of Virginia, 1950, as amended.  Dr. Gates moved that this item be continued to gather more information and secure a cost of the liability insurance required by NS.  Mr. Weaver seconded the motion.  Council approved the same by a vote of 7 AYES and 0 NOES.

UPDATE ON FIRE DEPARTMENT GRANT FOR BREATHING APPARATUSES:     Mr. Clark advised that letters concerning the Town’s application for Federal Emergency Management Administration (FEMA) assistance through the Assistance to Firefighters Grant Program were mailed to Senator Mark Warner, Senator Jim Webb and Congressmen Rick Boucher.  The Marion Volunteer Fire Department uses the Carin Pioneer SCBA equipment.  As of December 31, 2009, the units have been declared obsolete by the National Institute for Occupancy Safety.    Without this SCBA gear, the Marion Volunteer Fire Department will be unable to respond to fire calls effective January 1, 2010.  Mr. Clark asked that the Senators and Congressman inquire as to the status of the Town’s requests.  To date, Congressman Boucher is the only response.  Mr. Clark advised that 27 SCBA units are needed at a cost of $189,000.   Eight (8) SCBA units may be purchased thru a 55% Rural Development Grant.   The Town has been waiting to hear from FEMA prior to ordering the units.  However, if no response has been received from Homeland Security by early October, the Town will order 8 SCBA units. 

DEER POPULATION:  Mayor Helms advised that Chief Roberts has no additional information on this matter.  Upon motion of Mrs. Jennings, seconded by Mr. Leaman and vote of 7 AYES and 0 NOES, the item was continued.

APPOINTMENT TO MARION TREE BOARD COMMISSION:   The names of Jim Barker and Sue Rhudy were submitted for appointment to the Marion Tree Commission.  Upon motion, duly seconded and vote of 7 AYES and 0 NOES, Mr. Barker and Ms. Rhudy were appointed to the Tree Board Commission. 

LEASE OF TOWN PROPERTY/CHRISTMAS TREES/GREENERY:  Mr. Heath advised that he had a copy of the lease.  The document will allow use of the upper part of the Farmer’s Market for the sale of trees, greenery, etc.  Mr. Fenyk suggested a minimum bid to cover the cost of lights (not to be used for heat).  Council members agreed.  Upon motion of Mr. Weaver, seconded by Mrs. Jennings and vote of 7 AYES and 0 NOES, this matter was approved for advertisement.

CITIZEN’S CONCERNS ON SPRINKLE AVENUE:   Linda and Wayne Pennington, 304 Sprinkle Avenue and Bob May and Robyn Aker, 316 Sprinkle Avenue were present to express concerns over the condition of their neighbor’s property.  They provided photographs of the condition of the property.  According to the residents, a neighbor is burning their garbage in the yard and has various items of trash and junk on the property.  Rats are becoming a problem from the trash and the condition of the property affects the value of their homes.  They also have concern about the fires that he sets and feel that this is a dangerous situation.  The neighbors stated that they have tried to discuss this with the neighbor, but to no avail.  The Town has written letters and spoken with the individual concerning the problem.   He has been charged several times and was fined by the Court.  This has not remedied the situation.  Town Staff has offered to assist him in cleaning up the property.  They have offered to bring a large truck to haul off the debris.  The residents requested that the Town contact the Health Department as the condition of the property poses a health problem.  Members of Council expressed understanding and concern about the neighbor’s dilemma.   Mr. Leaman suggested that MRHA be contacted about the possibility of condemning the property under the “Spot/Blight Program”.    Mrs. Jennings urged the Town staff to contact the Health Department, MRHA, and DEQ to assist these citizens.  Mayor Helms suggested that a Town representative go to the Health Department, take the photographs provided by the citizens, and discuss the problem with the Director, Dr. Smith.  He added that staff again talk with the individual and offer the Town’s assistance to clean up the property.    The citizens were urged to express their concerns to VDH, DEQ and the Fire Marshall. 

UPGRADE ON SEWER TREATMENT PLANT, COUNTY PARTICIPATION AND LANE ENGINEERING STUDY:  Mr. Clark reported that Town staff had met with County representatives concerning the problems at the Sewage Treatment Plant.  Problems have arisen concerning the UV and effluent pump.  He added that it is critical that these items be addressed.  The County owns 17.65% of the STP and has some funds left over from another project and would like to use these on the STP Project, but it has to be obligated prior to January 1, 2010.  The Town is in possession of a proposed contract from Lane Engineering to perform a Preliminary Engineering Report to study the need for, and the feasibility of, renovations to the existing UV disinfection system to meet effluent limitations.  Mr. Clark advised that an application for Stimulus money for this project was unfunded.  He added that the Town has budgeted $400,000 for STP upgrade, amortized over a period of ten (10) years.   Dr. Gates moved that the Town enter into an agreement with Lane Engineering to perform a PER at a cost not to exceed $5,000.  Mrs. Jennings seconded the motion.  Council approved the same unanimously. 

REQUEST TO CLOSE STREET FOR FESTIVAL:  Mr. Heath stated that Mount Zion Church requested permission to close Iron Street from Orange Street to Cherry Street to hold their annual festival.  Upon motion, duly seconded, and vote of 7 AYES and 0 NOES, the request to close a portion of Iron Street was approved, with the stipulation that Mount Zion work with the Marion Police Department. 

ROOF CONTRACTORS AT TOWN HALL:  Mr. Clark advised that the contract with Red Oak Construction, Inc. has been signed and Red Oak is ready to proceed with the installation of a new membrane roof over the Council Chambers at a cost of $16,100.  They are also prepared to perform work around the cupola on the Municipal Building roof at a cost of $2,730.  The other cost incurred by the Town will be the use of a crane at a rate of $185 per hour. 

APPROVAL OF MINUTES / BUILDING AND GROUNDS AND FINANCE COMMITTEE:    Upon motion of Mr. Weaver, seconded by Dr. Gates and vote of 7 AYES and 0 NOES, minutes of a Special Called meeting of the Building and Grounds Committee and the Finance Committee, conducted on August 24, 2009 at Noon, were approved as written and distributed.

STREET COMMITTEE – PARK TERRACE SITUATION:  Mr. Leaman informed Council that the managers of Park Terrace Apartment decided to close Staley Street extension.  The Town asked that they remove the barriers as this is a thru street and the Town was primarily concerned about fire issues.  The only fire hydrant on the upper end of Staley Street may be needed in an emergency.   The Town’s Attorney, Mr. Fenyk found the Town’s right of way and the property owners removed the barricades.  In discussion with the owners, the speed was the main problem and why they closed the street.  Marion Police Department will monitor the speed and set up the trailer that shows the speed.  The Town may install a yellow line on Staley Street Extension.  A request has been received to install a speed limit sign on the street.

IRON STREET ROOSTER:  Mrs. Hale stated that there is a rooster being allowed to run free on Iron Street.  She added that now there are also chickens running loose in the neighborhood.  She asked that Mr. Farmer investigate this matter.  There are also dogs running into citizen’s homes and biting them.  Lt. Anders stated that the dog issue has resulted in charges being filed.

DANGEROUS INTERSECTION:  Mrs. Hale reported a dangerous intersection at Iron and High Streets.  Also, a tree at the Post Office hinders the ability to see traffic before moving into the lane.  Mr. Hicks was asked to address these matters.

RADIO HILL ROAD – SPEED PROBLEM:  Mrs. Jennings reported a speeding problem on Radio Hill Road, to and from the Wellness Center.

HANDICAP RAMP AT FIRST UNITED METHODIST CHURCH SIDEWALK:  Mr. Warren reported that the handicap ramp onto the sidewalk at FUMC is in need of repair and is inaccessible.   Mr. Hicks will discuss this matter with Ken Morrision. 

MOUNT ROGERS PLANNING DISTRICT 40TH ANNIVERSARY DINNER:  Mr. Hendrick informed Council that Mayor Helms was recognized and received a plaque at the MRPDC 40th Anniversary Dinner.  Mayor Helms was an original Board Member and was recognized for his contribution in the formation of MRPDC.   Two other original Board Members in attendance were former Marion Mayor Marshall Guy and Rhea Lawrence.  Mayor Helms showed a plaque presented to the Town of Marion that will be displayed in the Municipal Building, citing the Town for 40 years of participation in the MRPDC.  Mayor Helms added that former Governor Linwood Holton was the guest speaker.

PATCHING:  Mr. Hendrick asked that a hole at the seam of Keller Lane and Main Street be patched.  A second hole in need of patching is in the middle of Veterans Street. 

FIRE HYDRANT:  Mr. Hendrick stated that a fire hydrant at the corner of East Coyner Avenue and Scott Street is hidden from view by bushes planted by a property owner.   Staff will contact the property owner to have the bushes trimmed or removed.

SONG OF THE MOUNTAINS:  Mayor Helms reported a sell-out crowd at the Lincoln Theatre for the Song of the Mountains program.  He added that the General Francis Marion Hotel was also full.  He stated that the SOTM is definitely bringing folks into Marion.

PUMP STATION PROJECT – RIVERVIEW ESTATES EASEMENTS:  Mr. Hicks stated that Mike Heldreth will perform the survey.  Town Attorney Mark Fenyk will supply him with the deed.

AEP-RATE INCREASE PROPOSAL:  Mr. Fenyk advised that AEP has issued another request for a rate increase.  It was suggested that Council may wish to prepare a Resolution of Opposition to this matter.  Upon motion of Mr. Leaman, seconded by Mrs. Hale and vote of 6 AYES and 1 ABSTENTION (Gates), the Attorney was asked to draft a Resolution of Opposition on the subject of AEP’s rate increase request.

CONSTITUTION WEEK:   Upon motion of Mr. Weaver, seconded by Mr. Leaman and vote of 7 AYES and 0 NOES, Council declared the week of September 17 – September 23 as Constitution Week.

POLICE- NEW POLICIES:  Mr. Fenyk is reviewing proposed policy changes for the Police Department.

WEB CAM ON MAIN STREET:  Mr.  Heath reported that the Collins House Bed & Breakfast has installed a web cam that is focused on Main Street at the intersection of East Main Street and Sheffey Street.  It is very cool.  Views are available from 5 am until 10 pm.

COMMUNITY EVENTS:   1) Patriot’s Day on September 11 at 6 p.m. and Art Walk on the Second Friday.  This year the Art Walk will be held at the same time as Patriot’s Day.  Art Walk members will provide music and refreshments following the ceremony.

REQUEST TO CLOSE NORTH IRON STREET MALL:  Mr. Heath noted that during the Streetscape process it was discussed that the North Iron Street Mall, between The Lincoln Theatre and the former Belks building be closed.  He requested that a Public Hearing be scheduled to consider this matter.  Council decided to discuss this matter further, prior to setting a date for a public hearing. 

WATER COMMITTEE:  Mr. Hicks advised that the staff is reviewing the problem on Maple Street.

REMOVAL OF DEAD OAK TREE:  Mr. Hicks stated that there is a dead oak tree on Hollow Road.  He will secure prices to remove this tree.  It is located on the Town right of way.

PROJECT CROSSROADS FIREWOOD MISSION:  Mrs. Hale advised that Project Crossroads has a Firewood Mission and would probably be interested in the wood from any downed trees by the Town.

CLOSED SESSION-BOUNDARY ADJUSTMENT AT EXIT 44.   Pursuant to Code of Virginia, (as amended 1950) Section 2.2-3711 (A3 ) and upon motion of Mrs. Jennings, seconded by Mr.  Weaver and vote of 7 AYES and 0 NOES, Council entered into Closed Session to discuss a boundary adjustment at Exit 44 at Washington Avenue.  Mrs. Jennings moved that Council return to Open Session and that it is known that only those matters legally exempted from Open Session and identified in the motion were discussed during the Closed Session.  Mr. Warren seconded the motion.  Council approved the same by a vote of 7 AYES and 0 NOES.  Dr. Gates, Mrs. Hale, Mrs. Jennings, Messrs Hendrick, Weaver, Leaman and Warren voted affirmatively. 

Dr. Gates moved that Mr. Clark work with Smyth County on the Washington Avenue matter concerning land use.  Mrs. Jennings seconded the motion.  Council approved the same unanimously.

Upon motion, duly seconded and vote of 7 AYES and 0 NOES, the meeting was adjourned.


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Mayor                                                                   Town Clerk