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Urbanna defends actions

by Tom Chillemi

The Urbanna Town Council and town administrator Lewis Filling, are protected by “sovereign immunity” from claims alleged in a $4.5 million lawsuit filed by Potomac Timber Investments, wrote Andy Bury, attorney for the Urbanna Town Council, in a response filed on July 10, 2008.

Condo developer Potomac Timber Investments filed suit in Middlesex Circuit Court on June 18 against the Town of Urbanna and the Urbanna Town Council. The lawsuit also specifically names as defendants four members of council who voted against the 14 condos proposed for Urbanna Yachting Center. They are Beatrice Taylor, Bill Thrift Jr., Janet Smith and Megan Brockman. Town administrator Lewis Filling, who is the zoning administrator, was also named in the suit.

This is the second lawsuit filed by the developer regarding proposed condos on Watling Street.

The cases started when a Special Use Permit (SUP) for 14 condos was approved by town council in a 4-3 vote on November 20, 2006. Relying on the fact it had been granted a 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 site plan.

Potomac Timber’s lawsuit states that because council acted against the advice of Rob Brooks, the town attorney at that July 16, 2007 meeting, council’s actions were “arbitrary and capricious, discriminatory, intentional, in bad faith, malicious, reckless and motivated by ill will.”

Brooks later resigned as town attorney and council named Andy Bury to replace him.

Under Virginia Code, sovereign immunity “shall not apply to conduct constituting intentional or willful misconduct or gross negligence,” Bury notes. However, Bury argues, “Legislative actions taken by the Town Council, against the advice of their Town Attorney, do not abrogate (repeal) the sovereign immunity of its members.”

Bury also argues that the individual council members “have no independent powers; and the Town Council, not the town, is the only proper defendant; and all individual defendants as well as the Town of Urbanna should be dismissed with prejudice.”

Town administrator Lewis Filling “did not and is not alleged to have taken any action as the zoning administrator concerning any of the matters alleged in the Complaint,” wrote Bury.

Deadline to appeal

Further in defense, Bury notes that Potomac Timber did not appeal within 30 days the town council’s decision to deny the SUP on July 16, 2007, and that issue is “time barred.”

Potomac Timber filed its first lawsuit against “the Town” on September 12, 2007, which was not within the 30-day deadline, seeking to have the SUP denial overturned.

By mutual agreement, that lawsuit was put on hold while the developers submitted a new SUP application on February 15, 2008 and tried to negotiate with the town. Bury’s pleadings ask the court to consolidate the first and second lawsuits and consider them as one.

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

Special Use Permit

Potomac Timber has asked the court to “declare the special use permit approved” which council issued on November 20, 2006.

Bury’s response points out that “the approval of this 2006 special use permit involves improper notice, as well as procedural and other deficiencies which render the adoption of the 2006 special use permit void.”

In the town council’s response, Bury repeatedly points out that Potomac Timber “has not exhausted its administrative remedies”; has not complied with all of the 16 conditions of the “alleged” SUP approval; and has not complied with all applicable town ordinances. “The Plaintiff (Potomac Timber) has no property rights until he complies with all Town ordinances,” Bury argues. He also denotes Potomac Timber did not file the appeal within 30 days.

Bury uses similar language to argue that Potomac Timber did not appeal the 2008 denials by the Historic and Architectural Review Board (HARB) within 30 days, and has not exhausted administrative remedies.

The developers have argued that HARB does not have jurisdiction over the property, and HARB’s authority does not extend past the shoreline.

Council’s last action on the condos was taken on May 19, 2008 when it approved conditions to the site plan that would require reducing the maximum height to 24 feet or two stories and adding public access on the property. This modified site approval has been appealed in Potomac Timber’s second lawsuit.

(The condos had originally been proposed for three stories, about 35 feet tall at the roof ridge.)

Approval of the conditional site plan on May 19, 2008 “is moot” since council never approved the 2008 SUP application, wrote Bury.

Bury notes that Potomac Timber did not appeal the non-approval of the SUP by Town Council within the 60-day time limit.

Constitutional rights

Potomac Timber’s lawsuit also claims “deprivation” of property rights, due process, equal protection “in violation of the Virginia and United States Constitutions.”

The lawsuit asks the court to “declare that Potomac Timber’s Constitutional rights have been violated under color of law . . . and award damages of not less than $4,500,000” and attorneys fees.

Potomac Timber also claims “inverse condemnation” and taking property in violation of the fifth and 14th Amendments of the U.S. Constitution and the Virginia Constitution.

Bury argues, “Procedural due process is a constitutional right which applies to individuals in adjudicative or quasi-judicial proceedings, not legislative proceedings.”

Potomac Timber’s allegation of “arbitrary, capricious discriminatory, intentional, in bad faith, malicious, reckless, and motivated by ill will are conclusory and not factual and do not state a claim for violation of 42 U.S.C-1983 as a matter of law,” Bury wrote.

“Plaintiff has failed to allege facts sufficient to establish either a substantive due process, equal protection, or inverse condemnation claims. Plaintiff has failed to set forth sufficient facts to establish any of the claims,” wrote Bury.

Bury is asking the court to allow the introduction of evidence to support the town council’s case; and to “dismiss this Bill of Complaint with prejudice.”

Either party can ask for a hearing before a judge, which has not been done yet.

Court action requested

Potomac Timber is asking the court to:
• “Declare that the special use permit approved on November 20, 2006 remains valid and is subject only to the 16 conditions in that approval.”
• “Approve the site plan pending before Town Council on August 20, 2007 or, in the alternative, order the Town to approve the site plan with only such modifications or conditions as may be required by state law, the zoning ordinance, or the November 20, 2006 special use permit.”
• “Approve the site plan pending before Town Council on May 19, 2008.”
• “Decree that Potomac (Investments) has received the necessary (valid) certificate for approval for construction of the condominiums.”
• “Decree that the southern boathouse lies outside the historic district and that the boathouse can be demolished without any necessity for obtaining a certificate of appropriateness.”

posted 07.18.2008

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