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LAWYER: CASE REQUIRES 'TRICKS'
Attorney for O'Gara foes says difficult challenge forcing him to reach into 'bags of tricks'
Date published: 9/22/2009
BY FRANK DELANO "This zoning compliance issue is giving me a real headache," Richmond attorney David S. Bailey wrote in an undated, confidential memo as he struggled to find legal avenues to attack Westmoreland County zoning approvals of an O'Gara tactical training facility near Montross. "We have severe statutory problems in that only a landowner seeking the zoning or a variance can actually seek an opinion of the zoning administrator (ZA); an ordinary citizen cannot do so. So we have no statutory authority to ask for an opinion of the ZA," Bailey said in the memo to his co-counsel James C. Breeden and their client George Ripol. The memo was included, apparently erroneously, in papers filed last week in Ripol's appeal of Westmoreland zoning decisions favorable to the controversial O'Gara project. "Well, that certainly is embarrassing!" Bailey responded when notified that the memo was included with the public papers and that The Free Lance-Star planned to report it "In any event, it is inadmissible at trial and can't be used by opposing side because it is marked confidential. But lawyers rules don't apply to the press," Bailey wrote in an e-mail. "The memo is out-dated, is in fact several months old, and was sent before we had reviewed all the data in this case. After that review, we were able to file what I believe is not only an appeal that we can and should win, but is based on good facts which I didn't have all of when the note was written," Bailey said. In the memo, Bailey said he was looking for a way to challenge the Sept. 17, 2008, memo of then-Zoning Administrator Gary Ziegler that said an unnamed security training operation was allowed on the county's industrial park and adjacent agricultural land. "If the September 2008 letter is the ZA opinion requested by O'Gara, all time to appeal has expired. There is a fraud provision in the code which may extend this deadline," he said in the memo. "To try to get around all this, I have sent the enclosed [June 9, 2009] letter to the ZA [Robert Fink], asking for the letter of compliance mentioned in the contract of Jan. 12, 2009. If they try to use the September letter as the contract letter, I will accuse them of fraud," Bailey said. "My hope is that the county will 'bite' and issue a new letter which we can appeal. If they refuse, or don't answer, we can try a suit but it may not survive procedural challenges," Bailey wrote. "You guys are really stretching my bag of tricks in this case!" he concluded. Frank Delano: 804/761-4300
Read more stories about Westmoreland Date published: 9/22/2009
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