POWHATAN – A lawsuit brought against the county because of the Powhatan County Board of Supervisors’ decision to eliminate the Residential-Commercial (R-C) zoning district will move forward to trial, a judge decided last week.
Retired Judge J. Michael Gamble presided over a hearing on Wednesday, Aug. 28 where he had to rule on two motions the county made in response to the suit, which was filed on May 24.
Gamble was specially appointed to hear the case by the Supreme Court of Virginia after Judge Paul Cella recused himself and all of the other judges on the 11th Judicial Circuit. Cella said he could not hear the case because he owns property located in the area in question.
The lawsuit asserts that the members of the board of supervisors and the planning commission were “were unreasonable, arbitrary, and capricious” in their decisions to eliminate the R-C zoning district and thus “downzone” 509 parcels in the county. It asks a judge to declare the board’s action unlawful, that the downzoning ordinance is null and void, and that zoning district continue in effect as it existed prior to the board’s action.
Tom Lacheney, county attorney, had filed a demurrer asking the judge to dismiss the plaintiffs’ case, arguing that no downzoning occurred and the zoning reclassification did not violate their vested rights.
After hearing arguments from Lacheney and Gregory Habeeb, the attorney for the plaintiffs, Gamble overruled the motion, and granted the plaintiffs a trial, which could take place in mid October or earlier. While Gamble didn’t agree with all of Habeeb’s arguments, he said he had raised certain issues that could be a case for arguing arbitrary and capricious rezoning.
During the arguments, Lacheney maintained that the county had not downzoned the R-C properties in the lawsuit that were rezoned to Agriculture (A-10) because the owners actually gained by-right uses. He also argued that the rezoning reclassification did not violate the property owners’ vested rights because they are seeking to protect “rights they have not taken advantage of,” such as future development.
Vested rights mean that a landowner has a right to continue in an existing use, but it doesn’t stop a governing body from changing a zoning classification, which causes the use to become noncomforming, Lacheney said.
Habeeb stuck to the argument that the board’s action was arbitrary and capricious rezoning that was inconsistent with the county’s existing comprehensive plan; reduced the property values as well as the county’s tax base; and disregarded private property rights.
The judge also granted a motion made on the county’s behalf to dismiss two of the plaintiffs from the lawsuit – Richard Cox, a realtor, and the Richmond Association of Realtors. The judge agreed that those two plaintiffs didn’t meet the standards of a two-part test established in a 2013 Supreme Court of Virginia case for who has legal standing as a plaintiff in a declaratory judgment challenging a land use decision.
Laura McFarland may be reached at Lmcfarland@powhatantoday.com.