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BZA votes 3-1 to block marina repairs

by Tom Chillemi

“It’s going to have to be settled by the court. I don’t see how we can okay the marina with the other stuff (condo lawsuit) going on.” —BZA Chair J.D. Magness

The Urbanna Board of Zoning Appeals (BZA) upheld a decision by town zoning administrator Lewis Filling on Monday that stopped Potomac Timber from rebuilding the marina at Urbanna Yachting Center.

Plans by Potomac Timber to build 14 condominiums on the same 1.5-acre parcel on Urbanna Creek are also on hold, mired in court by a $4 million lawsuit filed by the developer.

Since May 26, the BZA has twice granted delays to the marina appeal to give both sides two months to reach a settlement on both the marina appeal and condo lawsuit.

No settlement was reached.

The marina appeal to the BZA stems from a site plan rejection by Urbanna Town Administrator Lewis Filling that blocked the marina rebuilding. On March 27, Potomac Timber filed a town zoning permit application to remove 82 slips and some boathouses, and to install 5 new docks with 98 slips, replace fuel tanks, and replace 263 linear feet of bulkhead.

Ray E. Watson Jr., a partner in Potomac Timber, appealed Filling’s decision on April 21.

Two site plans

With the developer and town at an impasse, the BZA debated the marina appeal at its meeting on Monday, August 3. BZA member Martha Lowe said the marina site plan and the condo site plan “overlap. Unless [Potomac Timber] withdraws the first one, how can we consider the second one? It seems logical to me that you would withdraw both site plans and present one consolidated site plan for this property. It makes no sense to have two site plans for one property.”

BZA chairman J.D. Magness noted there are “numerous legal rulings in Virginia about having two applications for the same parcel of property. This makes it impossible for us to decide which one is which.”

Later, Magness said, “Somebody has to pick one (plan), and we are not the ones to do it.”

Magness said he had looked at both the condo plan and marina plan, and “they simply don’t match up.”

Watson told the BZA the first site plan he submitted to the town on March 11 with his application “was the same site plan as the condominium project and it was returned with a letter stating, ‘No, you’ve got to have a different site plan,’ which we then did at great expense.”

The BZA declined to hear more evidence because the public hearing comment period was closed weeks ago.

Maintenance needed

BZA member Bill Hight noted the condo issue is in litigation, and the marina property needs improvements. “You’ve got to be able to maintain your property,” he said.

“It’s the obligation of the town not to oppose but to help this man put his marina in first-class shape,” said Hight. “It needs replacing. It’s a capital asset that will improve this town.”

Referring to the condo and marina issues, Hight said he personally didn’t see how the same piece of property could be used for both. However, he added that someone may be able to devise a plan where the condos and marina could co-exist on the 1.5 acres.

“Every time Potomac Timber has to go back and redo a site plan it (costs) cold hard dollars,” said Hight. “I’m going to tell you something, the other side of the coin is the taxpayers in this town are paying some cold hard dollars as we go through the process of having meetings, hiring other people, and paying legal fees. We need a win-win situation so much more than a no-win situation.”

Hight said improving the marina would help “my business” and the economy of the town. “Economics makes the world go round,” he said. “How long are we going to continue to put them down?”

Final debate

Lowe agreed with Hight and added she was “disappointed” that no settlement had been reached. However, Lowe added that the process needs to continue. “The town needs to figure this out with Mr. Watson.”

Magness said the proposed plan for Urbanna Landing Condominiums “shows the existing marina and not the addition of the new marina.”

Watson again told the BZA the first plan he submitted to the town showed the proposed new marina and condos. That plan was returned by Filling, he said. Potomac Timber then submitted another plan for the marina.

Lowe said the BZA could only consider the plan that was before them and Filling’s letter of denial.

Magness said, “It’s going to have to be settled by the court. I don’t see how we can okay the marina with the other stuff (condo lawsuit) going on.”

Potomac Timber’s attorney had argued in May that the marina improvements are allowed “by right.”

Magness responded by saying, “But, it still has to have a plan attached to it.”

Magness said that even if each issue in Filling’s denial letter is modified by the BZA, there still are issues involving the historic district and insufficient parking for the condos and marina. “The overlap in these two things (marina and condos) is just huge,” he said, and modifying the denial letter “does not cure the overlap of these two plans.”

Hight said, “This situation could have these people in court for five years.”

Lowe replied, “Our hands are tied because of the [proposed] double usage of the property.” She restated her suggestion that Potomac Timber withdraw both the condo and marina site plans and submit one plan.

Magness replied, “I assume that would have happened if a settlement was reached [by attorneys]. It hasn’t happened.”

Voting to uphold Filling’s letter of denial were BZA members Magness, Lowe and Lewis Smith. Hight voted against the motion. Member Martha Heric was absent.

Watson and Potomac Timber managing member Ken Fleishman left the meeting quickly without comment after it adjourned.

The BZA’s decision can be appealed to the Middlesex Circuit Court. A court appeal seems likely, said Magness. “Whatever we do is going to be appealed.”

Condo Lawsuit

Currently pending is a $4 million lawsuit filed by Potomac Timber in September 2008 after town council withdrew a special use permit (SUP) for the proposed 14 condos.

After the town issued the condo SUP in November 2007, Potomac Timber proceeded to buy the marina property for $2.9 million.

posted 08.05.2009

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