[EyesOnIvy] Daily Progress 12/20/05: County loses site plan dispute

[Brian Wheeler]

County loses site plan dispute
By Jessica Kitchin
Daily Progress staff writer
Tuesday, December 20, 2005

A judge has ruled against Albemarle County in a case that challenges the
power of local government authority in site plan decisions. 

Albemarle Circuit Judge Paul M. Peatross Jr. ruled in favor of Faulconer
Construction Co., saying the Board of Supervisors' rejection of a proposed
facility off Morgantown Road in Ivy was illegal because it was based on the
adequacy of roads outside the site itself. 


Peatross wrote that the county's condition that "pavement widths and
strengths of ? external roads shall be adequate to accommodate projected
traffic generated from the site" is illegal and invalid. 


When the Board of Supervisors rejected the site plan in October 2004, it
listed eight conditions in its reasoning. The other seven were not at issue
in the suit. 


Faulconer sued the county in January, saying its ruling goes out of the
county's legal bounds. "The county has misused its authority to accomplish
what it technically cannot do," M. Bruce Wallinger, the attorney
representing Faulconer, said at a court hearing last month. 


County officials argued that the rejection was an effort to protect the
health and safety of nearby residents, many of whom expressed concern about
construction traffic on Morgantown Road, especially with Murray Elementary
School near the proposed 27-acre Faulconer facility. 


"While the decision is not a surprise, it is a huge blow to the protection
of public health and safety," Brian Wheeler, president of the Ivy Community
Association, said Monday. "This case says local government can't question
the intensity of use on industrial land when it threatens property owners
and schoolchildren next door." 


Wheeler and other county officials had acknowledged that the case would be
an uphill battle, mostly because the Dillon Rule doesn't allow local
governments to make decisions not expressly granted to them by Richmond.
Comments made by Gov.-elect Timothy M. Kaine suggest local governments might
soon get more authority to reject plans based on lack of supporting
infrastructure. 


"Local government power is an issue that Kaine has given attention," Wheeler
said. "Here we have an example right in Albemarle that demonstrates local
government clearly lacks the power to say no to a development that will have
a severe impact on roads and public safety." 


Peatross ruled that the site plan decision would be sent back to the board,
and Faulconer would still have to account for the first seven conditions in
the county's decision, as well as the adequacy of internal roads. 


A representative from Faulconer declined to comment on the decision Monday. 


County spokeswoman Lee Catlin said she wasn't surprised by the decision but
was disappointed. "Basically, the county in this situation wanted to test
our ability to require adequate public facilities [as a condition for
development]," she said. "The court with this decision has really answered
that we do not have that ability." 


Catlin said the board would have the right to appeal, but no such action has
been determined yet. 



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

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