[EyesOnIvy] Daily Progress 11/30/05: Judge mulls zoning spat [i.e. Faulconer v. Albemarle in Circuit Court]

[Brian Wheeler]

Judge mulls zoning spat
By Jessica Kitchin
Daily Progress staff writer
Wednesday, November 30, 2005

A case before the Albemarle County Circuit Court on Wednesday addressed a
specific Board of Supervisors decision, but may have far-reaching impacts on
local governments throughout the state. 

Faulconer Construction Co. sued Albemarle County in January over one of
eight conditions listed in the county's October 2004 rejection of the site
plan for a Morgantown Road facility. In that one condition, the board
stipulated that the internal and external roads must be able to handle the
added stress of construction vehicle traffic. 


Specifically at issue in Wednesday's hearing was whether the county can
reject a site plan application because of the capacity and strength of
external roads. 


"The county has misused its authority to accomplish what it technically
cannot do," said M. Bruce Wallinger, the attorney representing Faulconer. "A
board cannot use the site plan application process to deny a use by right." 


The county's attorney, John Conrad, argued that Virginia code allows the
rejection and the county has a responsibility to ensure the health, welfare
and safety of its residents. "There were seven-and-a-half other reasons for
denying this site plan," Conrad said. "And the county actions are based on
the public safety and health issue." 


Faulconer owner Jack W. Sanford was the only witness at the hearing. The
remaining evidence came in the form of documents, including statutes,
meeting minutes and previous court decisions. 


After a site plan process that Sanford said "went smoothly," the site plan
was rejected in a 4-2 vote by the Planning Commission and unanimously by the
Board of Supervisors in 2004, despite County Attorney Larry W. Davis
advising the board that the external road condition was invalid. For that
reason, Wallinger said the county's actions were "arbitrary and capricious."



Circuit Judge Paul M. Peatross Jr. said he would look over the evidence and
"make a decision promptly." 


If he rules in favor of Faulconer, the board would be forced to exclude that
condition from its review of the facility. If he rules in favor of the
county, it would be a landmark decision that gives local government the
power to make a decision based on the adequacy of a development's
surrounding infrastructure, local officials said. 


One possible hurdle for the county is the Dillon Rule, established by a
19th-century judge and adopted in Virginia, which prevents local governments
from making decisions not expressly granted to them. In this case, attorneys
argued about whether local government has the power to reject a site
plan.The Faulconer facility would cover 27 acres near Murray Elementary
School and likely would receive traffic from Morgan-town Road. In 2003, the
Ivy Community Association appealed the land's light-industrial zoning, but
lost. This case deals solely with the site plan, not zoning. "The county can
ask about the sound and pollution generated by a facility when it comes up
for review, but they can't ask about big trucks driving on a small road near
an elementary school?" asked Brian Wheeler, president of the Ivy Community
Association, after the hearing. "Our elected officials have got to be able
to ask questions about these things and potentially deny something that's
going to impact health and safety." 


Supervisor Sally H. Thomas, whose district includes the site, said she
thought the board's decision to reject the site plan was sound. "It was for
the protection of the health and safety of the county," she said. "What this
court case is about is whether the Dillon Rule trumps the health and safety
of the people." 


Sanford declined to comment after the hearing. 


Conflict over the county's ability to use surrounding infrastructure as
justification for rejecting development has come up before, and county
officials have, on many occasions, advised residents to vent their
frustrations to state officials. 


"This is an issue in Richmond," Wheeler said Wednesday. "And it's an uphill
battle for us." 



Contact Jessica Kitchin at (434) 978-7263 or jkitchin at dailyprogress.com. 

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