Then Supervisors Undercut Neighbors’ Challenge
Albemarle Circuit Court Judge Cheryl Higgins threw out an appeal February 7 of a decision by the Albemarle County Board of Zoning Appeals brought by neighbors of the ReStore’N Station proposed for Rt. 250 just west of Western Albemarle High School. Neighbors of the project had sought to overturn a BZA ruling that backed Deputy Zoning Administrator Ron Higgins’s administrative decision that declared the project’s revision of its plan to create a 3,000 square foot second floor as in “general accord” with Board of Supervisors’ conditions for the project. Supervisors, in detailing constraints on the project, had limited the gas station/convenience store to a footprint of 3,000 square feet with no future additions, but in spelling out the conditions of its approval had not specifically limited the size of its second floor, believing its design as a 1,000 square-foot “family office space” was settled and thus unwittingly leaving a loophole. In his revision of the plan to conform to the Supervisors’ terms, project developer Jeff Sprouse enlarged the second floor, essentially placing the disallowed office addition on top of the first floor.
Neighbors had appealed Higgins’s approval of the revised drawing in which 3,000 square feet was deemed the same as 1,000 to the BZA and in a perfunctory hearing of the dispute, the four-member BZA backed the zoning department’s “general accord” finding on May 3, 2011. Following formal appeal procedures, neighbors then took their case to the Circuit Court.
The actual dispute over the intentions of the supervisors in setting conditions for the project was not heard by the court. Instead it ruled on a motion to dismiss the appeal brought by Albemarle County lawyers who were working in conjunction with Sprouse’s attorney, Rick Carter.
County lawyer Andy Herrick and Carter moved for dismissal on two grounds. First, they said, the site plan being appealed was no longer under consideration, having been replaced by a later version, a claim that ignored the cause of the dispute, which had not been resolved by the revised site plan but in fact created it.
Second, Herrick said, one of the complainants, Marcia Joseph, who filed the appeal along with Bruce Kirtley and Richard Brown, was not an immediate neighbor of the project and therefore did not have standing to bring the appeal. Joseph, who lives north of Charlottesville, is not “an aggrieved person” in the case, Herrick said, regardless of her willingness to come forward to oppose what she saw as an injustice, because she has no “direct financial interest” in the BZA’s decision. Herrick cited the ruling in a case from Virginia Beach that he said supported his reasoning. Eliminating Joseph from the appeal for “lack of standing” had no real effect on it because both Kirtley and Brown, as boundary neighbors, remained legally bona fide adversaries of the BZA action.
Neighbors were represented by Craig Marshall and T. J. Aldous of the Zobrist Law Group..
Herrick contended that the appeal “was moot because the issue is no longer alive” because Sprouse had submitted the revised site plan on July 14, 2011. “The actual controversy no longer exists,” Herrick said.
Carter, asked by the judge if he had any other points to raise, replied that he “concurred” with what Herrick said.
Joseph next addressed Judge Higgins and said, “Bruce Kirtley and Richard Brown and I said we can’t let this stand because it’s not fair. If you take me out of the equation then you take out every taxpayer in the county.”
Marshall pointed out to Judge Higgins that there is no precedent for dismissing all parties to a suit because one is determined not to have standing. He then argued that the case was not moot because “an actual controversy exists and the property of the aggrieved is threatened.” “What’s at issue is the official determination of the deputy zoning administrator [approving a 3,000 square foot second floor], not the site plan. Dismissal amounts to approval of the official determination.
“The BZA ruling continues to aggrieve the petitioners” Marshall argued. “We have a statutory right to appeal. . . . If mooted, this case will never be heard. . . .They can have a second floor two or three times the size of what the Board of Supervisors approved.
“We have no reason to believe the land owner will restrain himself. Three thousand square feet will be as ‘a thing decided.’ If every time we appeal they can change their plan, they will change their plan every time there is an appeal. That would be bad precedent.. . . These citizens feel their rights are being ignored.”
Asked for his rebuttal, Herrick said Restore’N Station has no vested right to build a 3,000-square-foot second floor because no significant governmental decision was made.
Carter argued that the issues in the public’s objection to the Restore’N Station when the Supervisors considered the special use permit had centered on water use and parking lot considerations and that these had already been decided by the board. “They are trying to get in through the side door what they could not get through the front door,” he said.
“We’re here because of the ‘general accord’ ruling,” countered Joseph.
Aldous, picking up a volume of the Code again, returned to the section that establishes the vested right to appeal governmental rulings. “A vested right exists if an official determination is made,” he read aloud.
Judge Higgins then paused to consider the matter and, noting “that it is refreshing to see someone so concerned” with civic affairs, she ruled that Joseph is not a legitimate party to the appeal because she had no direct financial stake and dismissed her as a petitioner. Next, adding that she regarded the issue of the 3,000-square-foot second floor as still under consideration, she ruled that, “Because the site plan is no longer in place, the issue is moot.” Thus the county’s motion to dismiss the appeal was granted.
Marshall said afterward that that meant Sprouse could be able to proceed to build a 3,000-square-foot second floor over the store.
Aldous said Higgins’s ruling might be appealed to the Virginia Supreme Court but that submission of the appeal would have to wait until Judge Higgins released her written statement of the dismissal and gave official reasons.
Aldous also filed a Virginia Freedom of Information Act request for documentation about whether the supervisors had formally voted, as required by FOIA law, after leaving an executive session discussion of the case. County attorney Larry Davis had said that the supervisors did not have to give him authority to defend a zoning decision at an open meeting. Chris and Ann Suh, owners of Brownsville Market, who were among those bringing the appeal, disagreed and asked Aldous to pursue the FOIA matter. It appeared no vote had been taken, which would have been a violation of the FOIA.
At this stage, at a February 24 meeting of the Supervisors, Davis presented the supervisors with a draft of a resolution he had prepared for them to ratify. It asserted that Davis has the authority to act on behalf of the supervisors “without specific additional authorization,” and that deputy zoning administrator Ron Higgins, who made the decision in dispute, has similar authority. The presentation of a resolution for the supervisors’ vote had not been posted on the public agenda for the meeting on the county website.
The resolution, adopted unanimously by the supervisors, concluded that “the County Attorney and the Zoning Administrator need no further authorization to act on the board’s behalf in such matters, in the case of site plans submitted under SP-2009-00034 specifically [Restore’N Station], the Board supports both (a) the official determinations made by the Zoning Administrator and (b) the legal positions and authority of the County Attorney to defend those determinations in all tribunals.”
Aldous said the resolution weakened the case of the neighbors should it ultimately go forward because it put the supervisors on record as saying they agreed with Ron Higgins’s “general accord” finding over the larger second floor rather than what they approved in granting the special use permit.
“What we did was to affirm that it is [the county’s attorney’s] job to defend the county and the zoning administrator,” said White Hall Supervisor Ann Mallek afterward. “We went through a rehash of how we got where we are and we had a discussion about the Restore’N Station. The County Attorney assured us that the only plan that is alive is the one approved by the Architectural Review Board.” That version has a first floor of about 2,800 square feet and a second at about 1,700.
Mallek said the draft resolution was brought forward by Davis and that the Supervisors had not asked for it. As for Davis motion to dismiss the appeal, she said, “There was no decision [by the Supervisors] to instruct him to oppose the appeal being brought by the station’s neighbors.”
She said she felt the Sprouse’s project consultant, Jo Higgins, had seen the loophole in the supervisors’ original conditions for the project at the meeting when they were set and that the Supervisors’ mistake was that they had failed to tie their approval of the special use permit to a specific site plan.
“I feel bad for everybody being riled up about it,” she said. “I would hope it can go forward as it was approved by the ARB. I hope the folks making the appeal can be at peace with this.”