15 September 2016
A debate which has dogged the Fluvanna County Board of Supervisors since early spring was finally put to rest at its meeting Wednesday afternoon (Sept. 7) when a majority of supervisors voted to retain land use in its current form.
The 3-2 vote (Supervisors Tony O’Brien and Mozell Booker dissenting) came after heated discussion in which O’Brien, the only supervisor without land in the program, pointed to what he saw as conflicts of interest among other supervisors and suggested some of them recuse themselves from the vote.
Land use, a program conceived in the 1970s, gives substantial tax breaks to landowners who keep their property rural through agricultural, forestal, or open space uses. But it comes at a price. During the most recent budget season, county staff said that the land use program had cost Fluvanna $2.7 million in uncollected revenue the preceding year.
In August supervisors gathered land use experts at a work session to learn more about the program and ask questions. All seven residents who stayed after the work session to comment during the regular Board meeting spoke in favor of retaining the program in its current form.
County Administrator Steve Nichols suggested supervisors either direct Commissioner of Revenue Mel Sheridan, who implements the program, to make changes or else vote to reaffirm land use as it currently exists. If supervisors chose the second option their vote would not be legally necessary, he said, but it would be useful as a “validation for the public.”
Supervisor Trish Eager immediately moved to reaffirm the program as it currently stands. Supervisor Don Weaver seconded her motion, but O’Brien pushed delay in favor of more discussion. He said he sent 17 questions to Mel Sheridan but had not yet received a response.
“I don’t think we have the appropriate information from the commissioner of revenue as to where we stand on land use,” O’Brien said. “There are, in my opinion, some pretty clear examples of where we are essentially doing the absolute minimum when it comes to compliance, and that in compliance itself there is a great misunderstanding on the public’s side.”
O’Brien, who has pushed for reworking the land use program to the frustration of some other supervisors, pointed out that the Board routinely examines expenses, “such as expenditures Mr. Weaver will scrutinize on a regular basis when we’re looking at the budget,” he said. “It is a disservice to the county residents not to scrutinize the compliance component of the land use program.”
He suggested supervisors request a third-party compliance audit to make sure that people participating in the program truly qualify for the tax breaks.
The other four supervisors save money by being in the land use program. In 2015 Eager saved $28,515; Weaver saved $1,995; Booker saved $944; and Supervisor Mike Sheridan saved $445. But O’Brien questioned whether all of them met the program’s standards of compliance.
“We probably have several Board members who, if they were to try to meet the spirit of the law…would not be able to meet that,” he said. “We have other Board members who, in my opinion, have a pretty clear conflict of interest. So to have an independent audit done of compliance is the very minimum that this Board should be doing if it is serious about enforcing the laws of Virginia… I do think that some of you are certainly putting yourselves in a bad position by voting for this… I am a little surprised that Board members are trying to brush this under the rug as quickly as possible.”
Booker said that despite the Board’s recent land use work session, “I still feel personally that we didn’t have a really healthy conversation and I think that we need to have that,” she said. “And if it takes an audit… It can’t do any harm to us, no more than just reaffirming that we’re doing the right thing according to the law, or maybe there’s some people who are not… I don’t have any problem with us really taking a deep look at it and getting somebody else to come in here and then we can know, and everybody knows, that we are doing the right thing for the right reasons.”
O’Brien spoke bluntly to his fellow supervisors. “If you know for a fact that you yourself are not in compliance right now based on the requirements of those [land use] forms, you have a responsibility, just for transparency, to recuse yourself from this vote,” he said. “How can you take a vote on something you have a personal interest in and that you know you’re not going to comply with?”
“Do you know, or do you feel, that anybody on this Board is out of compliance?” Eager asked O’Brien.
“Have you produced $1,000 of sales in gross receipts averaging for the last three years?” O’Brien asked.
Eager said that she has, and added that she has filed a federal Schedule F “for 32 years every single year.”
“I honestly believe that you were probably the one person on this Board that was absolutely compliant with that,” said O’Brien. “But I don’t believe that Mr. Weaver’s compliant. I don’t believe that the chair [Mike Sheridan] is compliant. [Booker] is strictly in forestal use so it’s hard for me to say… Further, I think the chair has a conflict of interest because his brother is the commissioner of revenue, so he should recuse himself from that.”
Mike Sheridan said that he has also filed a Schedule F. When O’Brien asked him if he has had gross receipts of $1,000, Mike Sheridan replied that he has put $1,000 into his grapes. The two began arguing.
O’Brien then alluded to when Mike Sheridan recused himself from voting on the controversial James River water pipeline last November because the pipeline’s projected path crossed his property.
“I believe that you have a conflict of interest, just because your brother is [the commissioner of revenue],” said O’Brien. “You’ve recused yourself for far less. And each of you has a financial interest in this. And just on that financial interest alone, you should for transparency purposes look to have a compliance audit done.”
County Attorney Fred Payne then interjected. “The fact that the chairman’s brother is the commissioner of revenue doesn’t constitute a conflict of interest,” he said, because the two don’t share a home.
Furthermore, he said, “A [Board] member participating in a program that relates to the entire county as a matter of general application does not constitute a conflict of interest except to the extent that he has a peculiar interest that’s beyond the matter of general application… And I don’t see that in this case.”
With tensions running high, Weaver called for the vote, which passed 3-2.
During the new business segment of the meeting, O’Brien asked county staff to look at how other Virginia counties advertise the requirements of their land use programs on their websites. He said he wanted to put land use requirements on the county website “so that the public is informed of their actual requirements.”
“Mr. Chairman, I think that motion is out of order,” said Payne.
When O’Brien asked why he was out of order, Payne said, “Because it’s already been decided.”
“No, we decided what the rules and procedures were like. This is with regard to the website and informing the public,” O’Brien said.
Mike Sheridan ruled O’Brien out of order.
“How is it out of order?” Booker asked.
“Because the matter was just decided on that vote,” Payne said. “Mr. O’Brien, I understand what you’re doing.”
“So you’re arguing that we shouldn’t be transparent with the public,” O’Brien said.
“I’m not arguing anything. It’s not up to me to decide this one way or another. The issue for me is a procedural one,” Payne said. “The Board ruled against you.”
O’Brien said his questions constituted a “content of website” issue and asked how the county decides what information appears on its website.
The commissioner of revenue is one of five constitutional officers who are directly elected by Fluvanna residents and do not fall under the authority of county staff or supervisors, though the Board in some cases has authority over different aspects of their programs.
“County staff does not decide or determine content for constitutional officer web pages,” said Nichols.