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Stafford wins land-use lawsuit
Stafford County wins first lawsuit, river protection ordinance remains in effect
Date published: 6/23/2009
BY JONAS BEALS When Stafford County supervisors passed the Potomac River Protection Overlay District in December, they knew the ordinance might be a lightning rod for lawsuits, particularly from developers. Indeed, four lawsuits were filed immediately after the ordinance passed. Two of them were recently decided in Virginia Circuit Court. Judge Martin Bass found in favor of the county on all six counts. "I knew we were going to get sued by the major developers," said Supervisor Harry Crisp, who voted in favor of the ordinance. "It always worries me that with their deep pockets, they're going to pick it apart and find anything that will negate it." Supervisors supported the ordinance for environmental reasons. It passed 4-3, with Paul Milde, Mark Dudenhefer and Cord Sterling voting against. The measure extends buffer zones to intermittent streams and nearby slopes greater than 24 percent. Detractors claimed that the ordinance unjustly reduced the amount of developable land in the eastern portion of the county. "I'm glad that the overlay ordinance remains in place," Supervisor George Schwartz said. "The purpose was to protect our environment. This is an important win for the citizens of Stafford." So far, the board's action looks safe, although this is only the first round in what could be a long legal battle. "We have survived the first challenge to eliminate the protections of this ordinance," said Samuel Nugent, the attorney who handled the case for the county. "The law did not support their claims." The decision was a summary judgment based not on disputed facts, but on the interpretation of the law. There is no trial and no jury involved in a summary judgment. The two lawsuits--filed by Stafford Lakes Limited Partnership and Augustine Homes LLC--were consolidated and considered together by the court. The plaintiffs attacked the ordinance on six counts that ranged from alleged procedural defects to conflicts with state law to a Fifth Amendment violation involving the taking of property. "We think the court's decision was incorrect, particularly on the published notice count," said Clark Leming, the attorney representing the plaintiffs. He feels that the court wrongly decided that the ordinance represented a text amendment to the zoning ordinance rather than an amendment to the zoning map. Each requires a different notification process. "We'll have to deal with it from here," Leming added. "Count two [regarding notification] is the most likely to get the Supreme Court's attention. We shall pursue the appeal." Aside from potential appeals, there are more lawsuits pending, with different allegations. But for now, those supervisors who voted for the ordinance can breathe a sigh of relief. "It's quite interesting that Judge Bass essentially supported the county's position on all counts," Crisp said. "That says something. We did it right." Jonas Beals: 540/368-5036
Read more stories about Stafford Date published: 6/23/2009
Leming and PATRICIA HEALY
(posted by
USA2007
, June 24, 2009 9:59 am)
How is the the Chairman of the School Board PATRICIA HEALY ( married to Clark Leming and are partners in law firm) who represents LAND DEVLOPERS does not have a conflict in making decisions where schools are built?
Mr. Lemming
(posted by
MrWonderful
, June 23, 2009 1:21 pm)
Keep trying, you will eventually find a corrupt state judge.
No, the ordinance was not passed for "environmental" reasons
(posted by
mustang2
, June 23, 2009 7:13 am)
Overlay districts are authorized by the General Assembly
when they have specific approved purposes. In this case,
as in other counties, Stafford passed the ordinance to
protect the county water supply. Each provision of the
ordinance must contribute toward that goal to be legal.
Examples in other like ordinances include those listed in the
Stafford law and others like underground fuel tanks, more
rigid septic requirements, etc. all designed to ensure
Stafford water is safe which is a fundamental need.
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