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Judge keeps developer’s condominium lawsuit alive

by Tom Chillemi

A developer’s lawsuit against the Town of Urbanna and Urbanna Town Council over proposed condominiums at Urbanna Yachting Center has survived a challenge by the Town.

An April 30 ruling by Middlesex Circuit Court Judge William H. Shaw III appears to allow the developer’s lawsuit to continue in court.

Judge William Shaw’s ruling does not grant the plaintiff (Potomac Timber) permission to build the 14 condos, and it does not dismiss the defendants (Town of Urbanna and Urbanna Town Council) from the lawsuit.

Judge Shaw wrote, “The thrust of Potomac’s claim is that the defendants (Urbanna and council) unlawfully interfered with or abridged its vested property rights, and in any case [Potomac] has pleaded sufficient facts to survive a demurrer (objection) to any of its counts, including the constitutional claims.”

Potomac Timber filed a $4.5 million lawsuit against the town and council in September, 2007 and is seeking court approval of a Special Use Permit, which council first granted in 2006 but then revoked in 2007.

Judge William Shaw III retired on May 1.

Background

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

On July 16, 2007, four members of town council (two council members were absent) voted to revoke the SUP application because the “site plan did not comply,” Potomac Timber’s lawsuit points out.

Potomac Timber filed suit not only against the town council, but also against council members as “individuals” for violating its constitutional rights under the U.S. and Virginia Constitutions. Those sued as individuals include council members Megan Brockman, Janet Smith, Bill Thrift and Beatrice Taylor who voted to revoke the SUP in 2007, and town administrator Lewis Filling.

However, Judge Shaw ruled, “The individual defendants have absolute immunity from liability under [federal] Section 1983 claims for their legislative acts. In my view, revocation of a special use permit is a legislative act.”

Judge Shaw wrote that because Potomac Timber seeks a damage award, “the Town shall remain as a proper defendant at this state of the proceedings.”

Judge Shaw wrote, “The Council had the authority to revoke the permit, upon notice prescribed in Section 15.2-2204(E), if the holder failed to meet the ‘terms or conditions of the permit.’ ”

Judge Shaw notes that Potomac Timber claims it had “no notice of the revocation proceedings” and did not attend that meeting on July 16, 2007, when four members of council revoked the SUP.

The town claims appeals made by Potomac Timber were “time-barred” because they were not filed within 30 days of council’s action on July 16, 2007. The 30-day time limit “is not at issue here,” wrote Judge Shaw.

Further, the 30-day time limit is not a valid issue regarding Potomac Timber’s challenge of council’s May 19, 2008 actions when it failed to act on a new SUP application, wrote Shaw.

“The primary issue in the cases,” wrote Judge Shaw, “is the status of the (special use) permit and its revocation is the central error alleged in the cases.”

Potomac Timber argues it had been granted a SUP. The Town of Urbanna claims the permit was invalid due to “defective descriptions in the application” and “procedures in approval.” Judge Shaw did not rule on these arguments, writing that they “cannot be decided without further evidence.”

Judge Shaw directed Potomac Timber’s attorneys to prepare an order that incorporates his rulings.

posted 05.06.2009

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