Attorney challenges Dollar General rezoning

WOODSTOCK – Shenandoah County’s recent rezoning for a Dollar General near Bryce Resort could face a legal challenge.

The Board of Supervisors voted 4-2 at its April 25 meeting to approve a request by The Broadway Group LLC and property owners RL Regis-Virginia LLC and Chandresh S. Mehta to rezone two parcels from high-density residential to general business. The developers plan to build a Dollar General store on the properties at 1480 Orkney Grade, Mount Jackson, near the entrance to Bryce Resort.

But Woodstock attorney Brad Pollack challenged the legality of the rezoning just two days after the board vote, though he indicated a desire to restart the process rather than take the matter to court. Pollack said in an April 27 email to County Attorney Jason Ham, of the firm Litten & Sipe, that Tom Brice, an abutting property owner, did not receive written or actual notice of the public hearing the Planning Commission held jointly with the Board of Supervisors on April 5. Failing to notify Brice goes against state code pertaining to the advertisement of public hearing notice, Pollack claims.

Supervisors met in closed session during their meeting Tuesday morning to discuss with Ham a potential challenge to the rezoning approval. Ham would not comment on the reason for the discussion prior to the closed session.

Zoning and Subdivision Administrator Joyce Fadeley, of the county’s Office of Community Development, sent notice by first-class mail to Tom Brice’s late father, Paul B. Brice, who died May 16, 2005, Pollack stated in the email.

“In no way is that adequate,” Pollack states. “Paul B. Brice, a prominent member of the Shenandoah County community who started Bryce Resort, was well known to have passed away then.

Not only was his death written about locally, but there was a significant article about his passing in the Washington Post,” Pollack goes on to state. “Improperly, no attempt was made to mail notice to his widow and sole heir, who died on March 2, 2017. And no attempt was made to notify her four heirs, among whom is Tom.”

State code requires the county to send notice to abutting landowners by registered or certified mail, which did not occur, Pollack states.

“As soon as you are able, please confirm that the County will require that the rezoning process be restarted,” Pollack states. “I trust that no court filing will be necessary by the May 25 deadline.

Ham’s only response to Pollack’s claim came in the form of an email the morning of May 1.

“The County has complied with Code of Virginia 15.2-2204,” Ham stated. “Please direct any further communication regarding this matter to me.”

Ham’s response prompted Pollack to seek information and documents pertaining to the county’s advertisement of the public hearing and attempts to notify adjacent property owners. Ham provided to Pollack a list of adjoining property owners to whom the county sent notifications about the rezoning request. All but four of the 22 people who received notices had mailing addresses in Shenandoah County, two of which are in Basye. The remaining property owners notified listed mailing addresses in other parts of the state as well as in Nebraska, Maryland, New York and Washington, D.C.

Pollack also claims the county’s advertisement for the public hearing on the rezoning for the Dollar General did not include any reference to places where interested parties could examine copies of the proposed change.

Virginia code states that advertisements for public hearings “shall contain a descriptive summary of the proposed action and a reference to the place or places within the locality where copies of the proposed plans, ordinances or amendments may be examined.”

Pollack contends the failure to comply with state code voids the rezoning and stated his view to Ham.

Ham sent Pollack copies of the public hearing notice as advertised in the Northern Virginia Daily. The correspondence indicated that Pollack sought more information than Ham provided. Pollack stated in a May 1 email to Ham that the attorney had not provided the following information:

• The dates the advertisement was run.
• Proof of notice sent to the Bryce Hill Townhouse Condominium Association, an abutting property owner.
• Explanation of how a dead man can be considered the owner of abutting property.
• Copies of certified mailings to abutting property owners, or copy of the affidavit that was filed in the case by the Shenandoah County Office of Community Development that mailings were sent by first class mail. Pollack stated that all that was sent to him was the verification of Joyce Fadeley and that no affidavit was ever filed.

“Since you have not answered nearly all of my critical questions, I am no longer pleased with communicating with only you,” Pollack went on to state. “I am particularly disappointed that you have refused to provide me your consent to discuss this matter with individual board members.”

Pollack indicated his desire to keep their conversation public.

“I may share with you the informal legal ethics opinion I received,” Pollack stated. “Regardless, I would like to hear from you any reason why our discussion should not be shared with the public at this time. Maybe doing so would avoid a costly court challenge, during which all of this information would become available to the press anyway.”

Pollack stated he also wanted to discuss the matter with Neese, who represents the district that includes the affected property as well as other board members. Pollack asked Ham for his consent to do so. Ham did not appear to have responded to Pollack’s question in the email correspondence.

“Pursuant to Virginia Rule of Professional Conduct 4.2, please provide me your consent for me to do so,” Pollack stated. “In this regard, I have received an informal legal ethics opinion that leaves me free to contact the press about the matter. So, not being able to discuss it with members of the Board of Supervisors who are frequent subjects of the press doesn’t seem to make a lot of sense.”

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com