POWHATAN – Powhatan County recently responded to a lawsuit challenging the board of supervisors’ decision to eliminate the Residential-Commercial (R-C) zoning district but the case will be delayed until a judge can be appointed to hear it.
The original lawsuit, which was filed on May 24, 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 change.
County attorney Tom Lacheney filed motions on Tuesday, June 18 in Powhatan County Circuit Court asking for two of the lawsuit’s eight plaintiffs to be dismissed from the case and refuting their claims on how the rest have been negatively impacted.
The same day that the county responded to the original suit, Circuit Court Judge Paul Cella recused himself and all of the other judges on the 11th Judicial Circuit. Cella said in a letter to the Supreme Court of Virginia that he could not hear the case because he owns property located in the area in question. Additionally, the other judges agreed that since one of their colleagues will be affected by the case, they should also recuse themselves.
At this point, the case has to wait until the Supreme Court of Virginia appoints a substitute judge, according to Rene Holy, chief deputy clerk.
The board of supervisors voted 3-2 in favor of eliminating the controversial zoning district at its meeting on April 24 in a decision that was the culmination of months of work by staff, the planning commission, the supervisors and the public.
David Williams, who represents District 1, Larry Nordvig, District 2, and Carson Tucker, District 5, voted for the elimination. Chairwoman Angie Cabell, District 3, and Bill Melton, District 4, voted against it.
The lawsuit was filed on behalf of several entities and individuals: the Richmond Association of Realtors; Richard Cox; Edmund C. Burruss; Christy B. Elliott; Old Buckingham L.L.C.; Robert A. Sorenson; East Coast Marketing Inc., trustee of Anderson Land Trust, Northside Two Land Trust, Hollywood Land Trust, and Rocky Oak Land Trust; and Linda Lee Pierce.
In the motion to dismiss filed by the county, Lacheney asked that the Richmond Association of Realtors Inc. and Richard Cox be dismissed as plaintiffs in the case “for lack of standing.” Since these two plaintiffs only have “speculative interest” in the potential listings or sales of properties, neither has legal standing to challenge a rezoning decision made by the board of supervisors, according to the motion.
It asserts that the two plaintiffs do not meet the standard of being an “aggrieved person” required for parties contesting a zoning ordinance. Since they do not have “ownership interest” of any kind, the suit in their case doesn’t meet the standard.
The county’s response to the original lawsuit refutes the plaintiffs’ arguments that their properties have been downzoned. According to the response, a downzoning occurs when a locality’s zoning action “results in a reduction in a formerly permitted land use intensity or density.”
All of the plaintiffs in the original lawsuit represent properties that were rezoned to Agriculture-10 (A-10). A comparison of the two zoning districts makes it clear that here was no reduction in formally permitted land use intensity or density, the response said. The A-10 district actually allows “for significantly more commercial development in quantity as well as more intense commercial development.”
The county attached a summary of uses for both A-10 and the former R-C zoning district to show how many more uses are allowed in A-10. In 2018, the board of supervisors voted to severely limit the number of by-right uses in the R-C zoning district to force more cases to go through the full process of coming before the planning commission and board of supervisors.
The response also addresses the complaint that the plaintiffs’ vested rights had been invalidated by saying they gave no specific rights that had been purportedly taken away. A landowner has a right to continue an existing use even if a governing body changes the zoning classification, but the existence of vested property rights does not prohibit rezoning, the suit said, citing previous case law.
The board of supervisors asked that the case be “dismissed with prejudice and that it be granted such further Relief as the Court deems appropriate.”
Laura McFarland may be reached at Lmcfarland@powhatantoday.com.