by Joe Fitzgerald

The Bluestone Town Center (BTC), according to council members who voted 3-2 to approve it, was decided in secret meetings between those council members and the applicants. At Tuesday’s open meeting in which they voted to approve BTC, those council members rather shamelessly admitted to those sessions.

City staff and the city manager effectively sat on their hands during the discussion, which brought questionable numbers and questionable rhetoric from rookie council members Dany Fleming and Monica Robinson, respectively. It was left to Councilman Chris Jones and Mayor Deanna Reed to present the arguments against the development with an assist from City Attorney Chris Brown.

The city manager was mostly silent throughout the conversation.

Also mostly silent was Councilwoman Laura Dent. She made the motion to grant the rezoning BTC sought, and followed the motion with a rambling explanation of what she seemed to say was one of the best things about the project for her, the promise of solar energy panels. Her motion effectively released the developers from their legally binding proffer to provide the panels, but she said she believed they would be installed anyway based on her private discussions with the developers.

Dent had made the motion on the Planning Commission to recommend approval of the project. Four weeks later, she asked the Community Development staff to explain the recommendation she had voted to adopt.

Two council members voted against the project and tried to persuade their colleagues to do so. The two, Reed and Jones, have a combined 172 months of experience as council members. The three council members who voted to approve have a combined 54 months of experience on the board. The last hold-out, essentially the tie-breaker, has no government experience beyond her two months on the council.

The tie-breaker, Robinson, said she met with BTC backers Dent and Fleming to discuss the issue behind closed doors. She apparently did not meet with BTC opponents Reed or Jones, who seemed to express surprise on hearing of her private meetings. She did not use the phrase “behind closed doors” in reference to her own dealings, but did use it to criticize past city decisions, although she didn’t say which ones.

Robinson was nominated for the council in a flawed Democratic caucus that flouted party rules and by default and inaction declared her the winner of an effectively tied vote. (It’s a long story.) Fleming won that caucus outright, but only after paying a fellow Harrisonburg Redevelopment and Housing Authority (HRHA) member more than $1,000 as a campaign operative. Despite what might seem like a conflict of interest, it was politically wise for Fleming to hire an operative, since he had lost that same caucus on his own six years earlier.

Those voting to approve cited no pragmatic or practical reasons for their votes, instead relying on the mantra of “affordable housing.” Much of the BTC housing does not fit the definition of affordable housing. Robinson relentlessly cited “equity,” but did not say what she meant by equity, or who would receive it, or how they would get it.

BTC as approved could grow the non-student population of the city by 10 percent before the next census at a time when the city, the state, the nation, and the world are trying to recover from a pandemic. The three council members’ vote of approval will make that recovery harder. They don’t seem to mind.

Joe Fitzgerald is a former mayor of Harrisonburg. This column is republished with permission from his blog, Still Not Sleeping.


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14 responses to “Public Hearing, Private Decision”

  1. LesGabriel Avatar
    LesGabriel

    OK. Someone correct me. I was under the impression that any time more than 2 members of a public body meet together constituted a “meeting” subject to Virginia open meeting laws. What did I miss?

    1. WayneS Avatar

      In Virginia, public bodies are permitted to go into “closed session” to discuss certain things such as personnel issues, acquisition of real estate for public purposes, investment of public funds where negotiations are involved, consultation with legal counsel requiring legal advice, and numerous other issues.

      I’m hard-pressed to come up with a legitimate reason for a city council to go into closed session to discuss the approval/denial of a proposed development project, however. The problem is, minutes are not required to be kept and it is very difficult to prove that such a decision was discussed or settled during a closed session.

      Most importantly, closed sessions of a city council cannot be held in secret.

      Here are a couple sections of the Code of Virginia related to closed meetings:

      https://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3711/

      https://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3712/

      EDIT: Oops! I completely missed this part: The tie-breaker, Robinson, said she met with BTC backers Dent and Fleming to discuss the issue… on my first read through.

      If that meeting happened then it was almost
      certainly not a legal meeting

      I apologize if I have just told you things you already know.

      🙂

      1. Nancy Naive Avatar
        Nancy Naive

        Eric seems to believe that one official doesn’t a meeting make, which of course makes sense in that who in their right mind would ever talk to any elected official about anything if there can be no guarantee/sense of confidentiality?

        On the other hand, that leaves one sure-fire method to meet with all of them ex parte.

        I suspect that the point of the disclosure laws is to make deliberations public, not necessarily presentations and information gathering.

      2. LesGabriel Avatar
        LesGabriel

        I have known instances where members of a Board have avoided being in a place together with 2 or more other members of the same Board for fear of triggering all of the rules related to official meetings. I don’t seem to be able to find the part of the code that spells that out.

        1. CJBova Avatar

          Doesn’t matter how many gather as long as they don’t discuss or transact business.

          1. LesGabriel Avatar
            LesGabriel

            Where do you find that in the code?

    2. Eric the half a troll Avatar
      Eric the half a troll

      The meeting was not between members of the public body but with one member and the developer (if the above report is accurate and I am reading it correctly). Nothing unusual about such discussions.

      Edit: here I am referring to this line: “private discussions with the developers”.

      As to this one: “ The tie-breaker, Robinson, said she met with BTC backers Dent and Fleming…”

      If they met together, that would have constituted a meeting and would have violated open meeting laws. If she met with them individually, no law would have been violated nor is there anything wrong with (or unusual about) such one-on-one meetings.

      1. WayneS Avatar

        Good point. The quote does not state that she said met with both of the other council members at the same time.

  2. WayneS Avatar

    This is my favorite part (emphasis mine):

    Also mostly silent was Councilwoman Laura Dent. She made the motion to grant the rezoning BTC sought, and followed the motion with a rambling explanation of what she seemed to say was one of the best things about the project for her, the promise of solar energy panels. Her motion effectively released the developers from their legally binding proffer to provide the panels, but she said she believed they would be installed anyway based on her private discussions with the developers.

    It will be interesting to see whether this developer keeps his promise. Based on my experience with developers, I’d say the odds are about 50/50.

    1. Nancy Naive Avatar
      Nancy Naive

      You’re too kind.

      50/50? 50-50 is the usual way of writing it, and with developers keeping a promise not in writing with penalties prescribed, go ahead and evaluate it for the actual probability.

      1. WayneS Avatar

        Yes, I should have written it as 50-50, or 0.50 or 50%. Actual probability is likely lower than that, but I was feeling generous this morning.

  3. WayneS Avatar

    This is my favorite part (emphasis mine):

    Also mostly silent was Councilwoman Laura Dent. She made the motion to grant the rezoning BTC sought, and followed the motion with a rambling explanation of what she seemed to say was one of the best things about the project for her, the promise of solar energy panels. Her motion effectively released the developers from their legally binding proffer to provide the panels, but she said she believed they would be installed anyway based on her private discussions with the developers.

    It will be interesting to see whether this developer keeps his promise. Based on my experience with developers, I’d say the odds are about 50/50.

  4. CJBova Avatar

    § 2.2-3701. (Effective September 1, 2022) Definitions.As used in this chapter, unless the context requires a different meaning: “Meeting” or “meetings” means the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2 or 2.2-3708.3, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. Neither the gathering of employees of a public body nor the gathering or attendance of two or more members of a public body (a) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body, or (b) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting, shall be deemed a “meeting” subject to the provisions of this chapter.

    1. WayneS Avatar

      That certainly appears to clarify some “gray areas” in the previous definition of a meeting.

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