Supervisors battle lawsuits over rezoning disputes

Supervisors battle lawsuits over rezoning disputes

By Christina Dimeo, Editor

The Fluvanna County Board of Supervisors is battling two lawsuits filed against it in connection with the Board’s decision to rezone land upon which LKQ Corporation, a Fortune 500 company, intends to build an auto reclamation facility.

Supervisors changed the zoning of a 90-acre parcel of land off Route 250 in Troy from agricultural to industrial last December after an intense public hearing in which several Fluvanna landowners, including Katie and Walker Ward, spoke in opposition.

Now the Wards are suing supervisors for that decision.

Carroll Morris is also suing supervisors over their March 28 decision to deny him industrial rezoning of his agricultural property, a 29.4-acre parcel that lies next to the LKQ site.

Ward lawsuit
The Wards filed suit Jan. 19, though the suit wasn’t served on County Attorney Fred Payne until Feb. 5, according to documents connected with the lawsuit.

The Wards own 70 acres adjacent to the LKQ site and spoke passionately against the rezoning in December, saying the auto reclamation facility would severely impact the peace and rural atmosphere of the land.

Once the rezoning was approved in December, the Wards filed suit, claiming that the facility will “lower their property value through increased traffic, noise, dust, offensive smells, environmental harms through leakage of toxic fluids into the creek that adjoins [their] property, and the replacement of serene natural views with industrial buildings and junked cars.”

The suit alleges that supervisors issued inadequate notice of the proposal to rezone, because the legal notices in the Fluvanna Review did not mention the proposed auto facility. It also alleges supervisors violated the law by not submitting the rezoning proposal to the Virginia Department of Transportation (VDOT).

The suit additionally alleges that the rezoning did not serve a genuine public purpose, “but instead involved a private benefit to a single property owner.”

The Wards have pointed to several emails in which county staff assisted LKQ and spoke positively of the company’s planned relocation to Fluvanna.

The suit seems to take issue with the level of perceived support from the county on behalf of a private company.

“The mere fact that private development of property may have potential revenue implications for the locality is insufficient to satisfy the requirements of” Virginia code that the rezoning serve a genuine public purpose, according to the suit.

Lastly, the lawsuit alleges the rezoning was arbitrary, capricious and unreasonable.

The Wards are asking the court to void the rezoning.

Supervisors filed a demurrer Feb. 23 that disagreed with the Wards’ allegations. First, they dispute that the notice was inadequate. The law requires that the Board provide a descriptive summary of the proposed action – which was the rezoning itself – not any potential actions by private third parties, according to the demurrer. The Board has no control over, and therefore cannot speak to, whether LKQ actually comes to the county.

The demurrer also states that the Wards were “informed enough about the Board’s pending action to send a two-page letter to the county Planning Commission and Board, and to follow up with an in-person presentation.”

Supervisors also claim that they did inform VDOT of the proposed rezoning as part of the technical review committee process.

The demurrer pointed to the legislative record to show the genuine public purpose of the rezoning. In recent years the Board has undertaken many actions designed to increase the number of businesses in the county.

Claiming the rezoning was reasonable, the demurrer quotes the Virginia Supreme Court’s rubric to evaluate reasonableness of a county’s zoning action: “Legislative action is reasonable if the matter in issue is fairly debatable. An issue may be said to be fairly debatable when, measured by both quantitative and qualitative tests, the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions.”

Supervisors asked for the suit to be dismissed.

Morris lawsuit
Carroll Morris’ parcel of land lies next to the proposed LKQ site. His suit references the Board’s LKQ decision in addition to its decision to deny his rezoning.

His suit and subsequent documents discuss at length what he perceives to be unjust treatment from supervisors in denying his rezoning while approving rezoning – and on March 28, a special use permit – for the LKQ land next door. His suit protests “disparate treatment” given to himself and LKQ.

Saying the decision to deny the rezoning was “unreasonable, arbitrary, capricious and less than fairly debatable,” Morris is asking the court to invalidate the denial of rezoning. He wants a new rezoning decision to be made “consistent with law and the court’s findings and declaration of right.”

At the time of the March 28 rezoning denial, county Zoning Administrator Jason Stewart had already found Morris in violation of zoning ordinances. Morris appealed the decision to the Board of Zoning Appeals (BZA).

At the May 15 BZA hearing, Scott Miller, county code compliance officer, testified that Morris’ property was functioning as a contractor storage yard. He said Morris “had leased the property to two companies with the purpose of installing pipe fixtures, bringing material in and working on those materials, welding what-have-you, and then moving those materials out onto Route 250,” according to minutes of the meeting.

Morris’ attorney, Waverly Parker, argued that Morris had a right to use his property as an auto salvage yard. Stewart said whether he had that right was beside the point, as he believed the property was being used as a contractor’s storage yard – a new and different use.

The BZA voted against Morris unanimously. The county is now “pursuing a legal remedy” in the matter, said Stewart.

Supervisors’ June 14 answer to Morris’ complaint is brief. The Board “denies that [Morris] has alleged anything other than a dispute of a legislative act of the Board, and avers that the legislative discretion exercised complied with the law and was ‘fairly debatable.’”

Attempts to merge the suits
Morris filed a petition May 2 to intervene “as an interested party” in the Ward suit. In his complaint he alleges that the LKQ zoning decision constituted “illegal ‘spot zoning.’”

The complaint said that Morris is “aggrieved” by the LKQ rezone, especially if his own rezoning decision is not overturned by the court.
Supervisors opposed his petition to intervene May 21, saying that Morris had missed the legal window of opportunity to challenge the LKQ rezoning and stating that he is not a “necessary party” to the Ward lawsuit.

Morris filed a response May 23 stating that his attempt to intervene was not untimely and that his land “was by the county’s own law and otherwise ever a better candidate for industrial zoning than was the [LKQ] tract.”

Morris also filed a motion May 23 to consolidate with the Wards for trial. Supervisors opposed the motion June 4.

Waverly Parker, Morris’ attorney, did not return a request for comment.

“We don’t have any particular desire that Morris join our suit,” said John Simpson, attorney for the Wards, in an email June 25. “He filed a petition to intervene and we simply stated to the court that we had no objection to him intervening.”

Next steps
The Wards objected June 14 to scheduling a trial on their lawsuit, stating doing so would be “premature.”

“We want to go to trial when the case is ready for trial,” wrote Simpson in a June 25 email. “Normally that means after the parties have had an opportunity to do discovery… There appears to have been a significant amount of activity that took place out of the view of the public that may be relevant to a fair determination of the issues in this case. We would like the opportunity to obtain this information before the trial occurs so that there is a fair trial based upon consideration of all the relevant facts.”

County Attorney Fred Payne, who is defending the Board, said June 20 that they want to go to trial “as soon as possible.”

Circuit Court Judge Richard E. Moore decided June 25 that the Wards could file an amended complaint that, according to the Wards’ request, “adds no new causes of action, but provides additional specificity for the previously-made claims.”

Moore also instructed that the discovery process begin.

Dates for the next steps in the lawsuits haven’t been set, said Payne. Moore “heard these motions and said it may take a while to resolve them – [it] may be a matter of weeks,” he said. “We’re going to move to set a date for trial at the next docket call in two months.”

The next docket call is set for Aug. 27.

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