From the Editor: Who’s the Boss?


Whom Does the People’s Lawyer Work For? 

Readers familiar with the tortured history of the Restore’N Station project on Rt. 250 would have been stunned to see an Albemarle County attorney sitting with the developer’s attorney, conferring in whispered tones over their tactics, at a recent Circuit Court hearing. At the table opposite them sat lawyers representing the station’s neighbors, who had yet again persevered through official forums seeking justice for themselves.

The Board of Supervisors imposed numerous conditions on the station that limited its size and operations in agreeing in October 2010 to issue a special use permit to allow the station to be built. Ironically it was the neighbors who were trying to get those conditions upheld and they were being opposed by the supervisors’ (and our) own legal staff.

In submitting a revised plan to conform to the SUP, developer Jeff Sprouse discovered that no conditions specifically addressed the size of the second floor, which, when the matter was before the supervisors, had been understood as an agreed-upon feature of his original plan. In his next plan, Sprouse increased the second floor from 1,000 square feet (it was formerly dubbed a “family office”) to 3,000 square feet of rental office space. This change got around a condition that forbids an addition to the building.

County deputy zoning administrator Ron Higgins next ruled that this alteration was in “general accord” with the supervisors’ conditions. Since when does 3,000 equal 1,000 wondered everybody else. Neighbors asked that this judgment be reversed but Higgins’s bosses didn’t take that chance to fix things. The neighbors were obliged to make a formal argument before the Board of Zoning Appeals. After a perfunctory hearing in which the meaning of the word “general” was explained to them by county planning staff, BZA backed the 3,000 equals 1,000 notion. From there the bewildered neighbors went to the next rung in the justice system, the county circuit court.

But before their appeal could be heard, county lawyers sought to have the case dismissed. They didn’t want “3,000-is-1,000” to get its day in court. They saw it as their job to preserve the zoning administrators’ bad decision. [See the story in this month’s issue]. Astonishingly, readers, their argument that the appeal didn’t matter because the plan was changed—which to ordinary people looked like exactly what was in dispute—prevailed in court. Thus the supervisors’ intentions in imposing conditions were subverted by their own lawyers.

Just whom does the Board of Supervisors supervise? In the first instance it’s their own employees. County Attorney Larry Davis, according to White Hall Supervisor Ann Mallek, did not ask the board if they wanted him to oppose the neighbors. He saw it as his job to defend the prerogatives of local government employees. How many of us would hire a lawyer to work for our opponent’s victory? Yet that is what happened.

When the neighbor’s lawyers next filed Freedom of Information Act requests seeking documents about the procedures of government, Davis responded to them that he was not obliged to turn over the information they were after. This is reminiscent of the school superintendent’s claim that she needn’t turn over 268 FOIA-requested emails that she exchanged with the company that supplied a school software package that teachers strongly dislike using.

Finally, Davis presented a resolution to the supervisors, also unbidden, in which they agreed to defend his action and the action of the zoning administrator, a document which through a bit of sophistry led the supervisors to say that when they imposed limits on the size of the station they actually meant to make it bigger. In agreeing to the resolution, the supervisors are at best guilty of inattention. At worst, they mean to stiff arm the legitimate rights of the neighbors and spare themselves a court case.

Why does the bureaucracy so regularly appear to have its own agenda in matters of public policy? Why do zoning administrators who the public thinks are hired to protect it from the schemes of avaricious individuals instead become the handmaidens of developers? Or, in the case of schools, why are educational fads such as the eight-period day for high schools imposed when they are opposed by teachers and parents? Perhaps it comes from exercising power with a sense of entitlement to job security and, from what the public sees, no real accountability. Let the supervisors handle that load.

We elect the supervisors, as former supervisor Walter Perkins once said wisely, to manage the ideas that come from our public employees. When we elect the School Board, we have a similar expectation of them.

If county attorneys do not understand that their bosses, the Board of Supervisors, are our employees, they need a different job. They were sitting at the wrong table. If our supervisors cannot manage their (our) employees in accordance with their oaths of office, they should get out now and let someone else take up the job. Sound, honest government is our only hope for preserving our freedom and our rights, which are constantly being bled from us in small cuts. We refuse to believe that 3,000 equals 1,000.