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Final arguments in condo lawsuits due

by Tom Chillemi

Today, September 25, is the deadline for attorneys for the Urbanna Town Council and condo developer Potomac Timber Investments to file motions relating to two lawsuits filed by the developer.

Attorneys made oral arguments on September 4 in Middlesex Circuit Court before Judge William H. Shaw III.

The developer is asking the court to clear the way to build the 14 proposed condos, and is asking the court to award $4.5 million in damages claiming “Potomac Timber’s Constitutional rights have been violated under color of law.”

The lawsuit also specifically names as defendants four members of council that voted against the proposed condos—Beatrice Taylor, Bill Thrift Jr., Janet Smith and Megan Brockman—and town administrator Lewis Filling, who also is the zoning administrator.

The town is seeking sanctions against the developer and its attorneys.

The case started when the Special Use Permit (SUP) for 14 condos was approved by the Urbanna Town Council in a 4-3 vote on November 20, 2006. Relying on the fact it had been granted an SUP, Potomac Timber purchased the 1.47 acres for $2.9 million.

On July 16, 2007, four members of town council (a majority) voted to deny the SUP application because the “site plan did not comply,” the lawsuit points out. Council did not vote on the condo site plan.

Potomac Timber’s attorneys argued at the hearing that proper legal notice was not given and a hearing was not held before four members of council “attempted” to revoke the SUP on July 16, 2007. “In order to revoke a permit, the governing body must determine that there has not been compliance with the terms and conditions of the permit,” claim the developers.

The developers contend the 2006 SUP for the condos “remains in effect” and the “attempted” revocation was illegal.

The town attorney argues that four members of council, Beatrice Taylor, Bill Thrift, Janet Smith and Megan Brockman, voted on July 16, 2007 to revoke the SUP. The town contends the developer did not appeal this decision within 30 days as required by law, so the town council’s decision to revoke the SUP cannot be appealed.

Potomac Timber filed its first lawsuit against “the Town” on September 12, 2007, which did not meet the 30-day deadline.

Potomac Timber’s attorney, however, argues that the state code “does limit the time from appealing a special use permit, but only after a ‘grant’ or ‘failure to grant’ a special use permit. Here, however, council attempted to revoke a previously granted special use permit,” states the developers’ appeal.

“Because the unlawful ‘attempted revocation’ was void and without legal effect, there was no burden on Potomac to appeal the decision—there was no legal decision to be appealed. In short, the 2006 Special Use Permit remains in effect,” states the developers’ attorneys.

The town argues that the state code section titled “Powers and Duties of Board of Zoning Appeals” states that one of the enumerated legislative duties of the BZA and the Urbanna Town Council is “to revoke a special exception previously granted. . . .”

Further, the town argues “a legislative act is presumed to be valid, and the party challenging the act has the burden of rebutting the presumption.”

Potomac Timber argues that “the ‘revocation’ was not a legal action and is not protected by legislative immunity.”

The town also points out that Potomac Timber also did not appeal within the 30-day deadline a recommendation for denial by the Urbanna Planning Commission, which was rendered on June 28, 2007.

In the town council’s latest brief, attorneys also contend that the original SUP application “failed to accurately describe the property” and did not include or identify two tax map parcels. Town attorneys also point out that council’s vote on November 20, 2006 approving the SUP “was not properly confirmed.”

By mutual agreement, the first Potomac Timber lawsuit was put on hold while the developers submitted a new SUP application on February 15, 2008 and tried unsuccessfully to negotiate with the town.

Town attorneys also argue that the 2008 SUP application “was never approved. Thus, the site plan accompanying it is moot.”

Potomac Timber is claiming “inverse condemnation” or a “taking” of property.

The town argues that a “taking” occurs when “government action prevents ‘all’ economic uses of the property.”

The town council is represented by Andy Bury, who is being aided by John Conrad, an attorney for the Virginia Municipal League.

Urbanna Landing developers Ray Watson and Ken Fleishman have retained John Easter of the Williams Mullen law firm in Richmond, and also have Elliott Bondurant of West
Point on their legal team.

Sanctions

The town’s motions for sanctions alleges that before Potomac Timber filed its lawsuit “officers, agents and/or attorneys of the Plaintiff made threatening statements to the members of the Town Council of Urbanna,” its attorney Andy Bury, and town administrator Lewis Filling.

“These threatening statements included, but are not limited to, threats to the effect that if approval of the Plaintiff’s applications pending before the Town Council of Urbanna, the Planning Commission, and/or the Historical and Architectural Review Board were not approved as submitted by the Plaintiff, and/or acted upon in a manner satisfactory to the Plaintiff, the Plaintiff would file a lawsuit and seek damages against the members of the Town Council, personally, as individuals.”

Potomac Timber “followed through with the threats made” and filed suit not only against the town council, but also against council members Brockman, Smith, Taylor and Thrift and administrator Lewis Filling. “The Plaintiff (Potomac Timber) filed the present lawsuit against these individuals in order to threaten and intimidate them,” according to the motion for sanctions.

The town’s motion for sanctions further states that “the Plaintiff (Potomac Timber) and its attorneys, B. Elliott Bondurant and John R. Easter, have violated their responsibilities to exercise good faith in determining that sufficient legal and/or factual grounds exist for the claims asserted against the individual defendants” and “have failed to fulfill their legal responsibilities in order to do so.”

Potomac Timber argues it “is on firm ground asserting that the individual defendants are not entitled to absolute immunity because their attempted revocation was not a valid legislative act.”

posted 09.25.2008

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