Tuesday, November 19, 2013
On November 5, Goochland Circuit Court Judge Timothy K. Sanner dismissed a case brought against Benedictine College Preparatory School (BCP) and the county by neighboring property owners who contended that the plan of development for the River Road property was improperly approved and did not adequately address downstream storm water runoff.
Andrew Thexton, who lives on the north side of River Road several hundred yards to the east, presented compelling evidence during last summer’s Board of Zoning Appeals (BZA) hearing that changes made to the BCP entrance, including turn lanes, resulted in storm water being channeled into the crawlspace of his home after heavy rains.
Sanner also ruled that the BZA had no jurisdiction in the matter and that the neighbors had no standing to challenge the POD nullifying the entire BZA proceedings.
The county has incurred legal bills greater than $100,000 since the start of 2013. Goochland County and BCP began working on the POD process shortly after the conditional use permit allowing the relocation of the venerable educational institution from Richmond to Goochland was approved in December, 2011.
Sanner explained that he spent “considerable time” reviewing briefs and exhibits submitted to the court by both sides in the dispute. The judge commented that he sympathized with the plight of a homeowner who, through no fault of his own, incurs possible damage to his house caused by activities on nearby land.
He said that there is no basis in state or county law for neighbors who are not a party to a POD are considered “strangers” and not eligible to contest it. Sanner also remarked that he found the applicable sections of the Code of Virginia written in “unusually opaque language.” If the statute is trying to provide a remedy, it should be more explicit, he said.
Attorneys on both sides presented their version of “harmonizing” of conflicting applicable laws from the general to the specific and back again.
Sanner suggested that the parties might want to encourage their representatives in the General Assembly to craft specific and understandable statues to guide local government in this kind of situation. Indeed, legislators on both sides of the aisle need to stop their attempts at social engineering and pass useful and understandable laws.
The county’s POD process has been upheld. Classes began at BCP in September. Those residents of the River Road corridor that opposed having the school in their midst have likely not changed their mind, and the sun came up in the morning.
The POD process is quite complicated and can involve securing approval from state agencies including the Department of Environmental Quality (DEQ) and VDOT—the state agency whose motto is “Oops!”.
If indeed the changes to the BCP entrance resulted in an increase in the amount of storm water runoff being channeled onto Thexton’s property, the situation must be mitigated. The BCP move has generated much bitterness, which further complicated land use processes. Regardless of culpability, the county has an obligation to ensure that development does no harm to neighboring properties.