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Town BZA decision appealed

by Tom Chillemi

Potomac Timber LLC has appealed the recent Urbanna Board of Zoning Appeals (BZA) decision that prevented the marina at Urbanna Yachting Center from being rebuilt.

The appeal asks the Middlesex Circuit Court to clear the way for demolition of both boathouses and all but 6 existing slips at the marina.

Potomac Timber, which owns the marina, has permits from the Virginia Marine Resources Commission to construct floating piers with 98 new boat slips (for a total of 104 slips) and to replace 263 feet of bulkhead.

The plans to rebuild the marina were interrupted in March 2009 when Urbanna zoning administrator Lewis Filling contended the building plan violated the town zoning ordinance. Based on this objection by the Town of Urbanna, Middlesex County rescinded the marina’s building permit.

On April 14, 2009, Filling wrote a letter to Potomac Timber rejecting the marina’s zoning application and site plan. Potomac Timber appealed Filling’s decision to the Urbanna BZA. On August 3, 2009, by a vote of 3-1, the BZA upheld Filling’s decision to halt the marina renovation.

This BZA case is complicated by a $4 million lawsuit filed by Potomac Timber after the Town of Urbanna withdrew a special use permit, which stopped the proposed construction of 14 condominiums on the same 1.5-acre parcel on which the marina is located.

At the request of Potomac Timber, and with agreement by the Town of Urbanna, the BZA twice postponed rendering a decision to give the two parties time to work out a solution to the marina appeal and the $4 million lawsuit.

However, no out-of-court settlement was reached. On August 3, 2009 the BZA upheld Filling’s decision to reject the marina zoning application. BZA members noted that there are two different site plans from the property—one for the marina, and one for the condos.

Potomac Timber’s attorney, John Easter of Richmond, wrote in the September 2 court appeal that the BZA made “the erroneous conclusion that the [condominium] site plan currently pending before this Court in another matter somehow precluded approval of the by-right reconstruction of the marina and docks.”

Condominiums

The September 2, 2009 appeal to the Middlesex Circuit Court is the third legal challenge initiated by Potomac Timber against the Urbanna government. Potomac Timber’s plan to build 14 condominiums on the same 1.5-acre parcel on Urbanna Creek is also on hold, mired in a $4 million court lawsuit.

A special use permit (SUP) to build the condos was originally granted by council by a 4-3 vote on November 20, 2006. Potomac Timber then bought the property for $2.9 million relying on the fact it had a SUP to build the condos. After the town council took away the SUP, Potomac Timber filed its first lawsuit against Urbanna on September 12, 2007.

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 to negotiate with the town for approval of a second site plan application. The negotiations were unsuccessful.

The second lawsuit was filed on June 16, 2008 after town council failed to grant a special use permit (SUP) for the condos.

The second lawsuit survived a preliminary challenge in court. On April 30, Middlesex Circuit Court Judge William H. Shaw III, who is now retired, made a ruling that allows the condo lawsuit to proceed. However, more than a year after the condo lawsuit was filed, no evidence has been presented.

No court ruling has been made on a motion to consolidate the first two condo lawsuits, which are similar in some ways.

posted 09.09.2009

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