Observations from Goochland Circuit Court on October 20

 

The next action in the court case filed by several Goochland residents seeking to void the Technology Overlay District approved by the Board of Supervisors last November took place on October 20 in Goochland Circuit Court. At the start of the proceedings to consider a demurrer, Goochland Circuit Court Judge The Hon. Timothy K. Sanner announced that he would not rule from the bench but provide a written decision as soon as possible.

In Virginia law, a demurrer is a procedural device used by a defendant to challenge the legal sufficiency of a plaintiff’s civil complaint. The purpose of a demurrer is to test the legal adequacy of the plaintiff’s cause of action, rather than the truth of the factual allegations. If Judge Sanner rules that plaintiff allegations are sufficient, the case could proceed to trial; if not, the case could be dismissed.

The plaintiffs’ attorney is Phillp Strother. The plaintiffs ask that the TOD be declared void.

The defendant, in this case Goochland County, the Board of Supervisors, and Planning Commission, is represented by Micheal J. Finney and Monica Monday, of the Gentry Locke law firm, asks that the court dismiss all counts of the complaint with prejudice, meaning that the case is closed and the plaintiff cannot refile the exact same case. Stating that only the governing body, the board of supervisors, is responsible for adopting county zoning ordinances, comprehensive plan and map amendments, defendant counsel asked that the county and planning commission are not “proper parties” to be named in the complaint and asked that they be dismissed from the case.

Counsel for the plaintiff argued that their allegations are adequate to move the suit forward. Defendant counsel refuted plaintiff arguments. Both sides spent three hours citing case law.

The complaint, filed last December, alleges that the adoption of the TOD and related actions were taken in conflict with Goochland County zoning ordinances and failed to comply with  Commonwealth statutory and constitutional principles. It also alleges that the county did not follow advertisement and notice procedures required by state law.

Since the suit was filed, the plaintiffs have “nonsuited”–removed from the complaint— all but three of the initial nine counts, including an allegation that the defendants acted “arbitrarily and capriciously” in adopting the TOD.

The remaining points of contention involve the standing of the plaintiffs—their legal ability to bring the suit—whether the county adhered to public notice and advertisement requirements of state statute; and whether the supervisors exceeded their legal authority to change the permitted uses in existing zoning districts inside the TOD boundaries.

To  justify standing, plaintiffs in a lawsuit against a zoning action must prove that they own or occupy land inside of or in close proximity to the property in question. The county argued that the plaintiffs do not own land or live in the TOD. Plaintiffs, most of whom live in either Mosaic or Readers Branch, contended that they do have standing because their property is in close proximity to the TOD.

Plaintiffs must identify specific actual harm caused to them by the zoning action. The county argued that the complaint contains generic “cookie cutter” allegations of harm caused by data centers including decreased property values, increased noise, pollution, traffic, and imminent risk of intensive industrial development in close proximity to the homes of plaintiffs.

Plaintiffs alleged that the county failed to provide proper notification about community meetings and public hearings concerning the TOD. The county contended that because plaintiffs attended and commented at TOD community meetings and public hearings, they are considered to have waived their right to notification.

The complaint alleges that the TOD creates a new zoning district. The county contends that an “overlay” district does not change existing zones, but rather “overlays” additional requirements that are applied uniformly to building and uses therein.

Plaintiffs allege that the county violated state law by authorizing industrial uses in the A-2 parcels in the TOD that are otherwise prohibited. The defendant contended that the supervisors lawfully amended the applicable zoning laws and regulations when approving the TOD.

Judge Sanner listened attentively to the arguments, took notes, and asked a few clarifying questions.