County to file response to lawsuit
By Greg Pearson STAFF WRITER

Page Dowdy/Chesterfield Observer Mike Brandon stands in front of a silo on the farm property he and his wife own on Mt. Hermon Road. He is one of 11 plaintiffs who are suing the county because they say the Upper Swift Creek Plan takes away their right to develop their property.

In a matter of days Chesterfield County is expected to file a response to a lawsuit alleging the newlyenacted Upper Swift Creek Plan (USCP) violates property rights. The legal action was brought last month by 11 plaintiffs who own property on Mt. Hermon and Lacy Farms roads. The properties in question are located in the USCP's growth management area, where growth is restricted until sufficient infrastructure, primarily roads and schools, is in place to accommodate it.

Jack Wilson, a former county planning commissioner, is serving as co-counsel for the plaintiffs, and expects hearings and motions before a trial date is set.

While the legal timetable hasn't been determined, one mystery has been solved - the plaintiffs are paying the attorney fees. Plaintiff Mike Brandon confirmed that last week, saying he hoped those costs would be $20,000-$30,000 total. "We're paying our fair share and looking for help hopefully from developers," he added.

"Our legal action fund is fully funded, but we typically don't get involved at the trial level," said Mike Toalson, executive director of the Home Builders Association of Virginia. "Our process would be triggered by a request for legal support from one of our member associations. In this case that would mean the Home Builders Association of Richmond [HBAR]."

HBAR Executive Director David Reel said his organization is not involved in the suit, and he doesn't know any individual developer who is supporting the suit financially. The suit does not seek any compensation, including attorney's fees.

Brandon, who has owned a 53-acre farm on Mt. Hermon Road since 1973, said none of the plaintiffs are "what you'd call a developer." He has a Class A contractor's license, but doesn't consider himself a developer. He once tried his hand at farming with 20 cattle roaming on his pastureland.

He and about 50 other property owners previously pooled approximately 800 acres in the growth management area for development. Brandon said that acreage is exempt from the USCP restrictions because the rezoning was filed before the USCP was approved.

Lead counsel for the plaintiffs is John Foote, a former attorney for Prince William County, who is also friends with Chesterfield County Attorney Steve Micas. Foote achieved acclaim about five years ago when he and Steve Sayers, of the McLean office of Hunton & Williams, persuaded the Virginia Supreme Court to overturn growth restrictions in Loudoun County. Over 225 lawsuits had been filed.

"We successfully overturned the entire down zoning…on defective notice," explained Foote. The legal notice did not specifically identify the area to be down zoned.

"The court asked, 'What is western Loudoun County?'" said Foote.

The suit filed against Chesterfield County claims legal notices advertising the USCP were "defective and failed to meet statutory requirements [for] applicable notices and give reasonable, fair and required notice under Virginia law." The plaintiffs say the notices did not identify the affected plan area or notify property owners of whether their properties might be impacted. They also allege the USCP amounts to a moratorium on growth in that area, which would be illegal.

"The Supreme Court has given local governments a substantial amount of leeway to address land use issues," explained Foote, "…[but] they are death on procedural error. They let you play on the field as long as it's level."

With Chesterfield's recently implemented streaming video of board meetings, Foote was able to watch the board in action.

"[Matoaca] Supervisor [Marleen] Durfee struggled to get her motion out [on the USCP], and the board struggled to understand it," he added. "But it seems the staff did a pretty good job cullying together the motion."

Midlothian Supervisor Dan Gecker and Bermuda Supervisor Dorothy Jaeckle complained they did not have a copy of Durfee's motion to review prior to the board taking a vote.

In addition to Brandon, the other plaintiffs are Bruce Moseley, Robert Moseley, L.C. Sallé Jr., Nancy Walsh, James Brandon III, Benjamin Durvin, Melissa Trevett, Melinda Leonard, Sherwood Dance and Anndale Properties, LLC. Foote is an attorney for Walsh, Colucci, Lubeley, Emrich & Walsh in Prince William County.