County responds to Dollar General rezoning lawsuit

WOODSTOCK – Attorneys for Shenandoah County have asked a judge to dismiss a resident’s lawsuit over the rezoning for a new Dollar General store.

Attorneys with the Salem law firm Guynn & Waddell PC filed a response in Shenandoah County Circuit Court on Wednesday to a complaint that seeks to nullify the Board of Supervisors’ approval of an application to rezone property near Bryce Resort in Basye for the future construction of a small, retail store.

The response comes more than a year after Woodstock attorney Bradley Pollack filed the complaint in the court May 24, 2017 on behalf of neighboring property owner Paul T. Brice.

Supervisors met in closed session during their regular meeting on June 12 to talk to County Attorney Jason Ham about the lawsuit. The county’s general liability insurer, VACORP, retained Guynn & Waddell since the filing of the complaint, County Administrator Mary T. Price stated in an email Monday.

Michael W.S. Lockaby, with Guynn & Waddell, states in a court filing as part of the response that Brice has not pleaded standing – a necessary element of a zoning claim.

“In order to show standing, the Plaintiff must plead that he is aggrieved – i.e., that he has some personal or property right, legal or equitable, imposed upon him that is different from that suffered by the public generally,” the demurrer states. “No facts regarding standing are pled in the Compliant. Accordingly it is facially deficient.”

The board asks through its legal counsel that the court dismisses the complaint with prejudice.

Lockaby also filed a motion asking the court to strike the plaintiff’s demand for a trial by jury in the case. Lockaby contends that only a judge can try equitable claims cases. A claim that the Board of Supervisors failed to comply with mandatory notice requirements, thus voiding a zoning ordinance, falls under chancery cause. In order to carry it into effect, the court must issue an injunction to prevent the zoning enforcement and the relief sought by Brice is equitable in nature, the motion states.

The Planning Commission and the Board of Supervisors held a joint public hearing April 5, 2017, on an application to rezone two parcels at 1460 Orkney Grade, Basye, from high-density residential to general business use. The applicants, the Broadway Group LLC, RL Regis-Virginia LLC and Chandresh S. Mehta, sought the rezoning to build and operate a small commercial retail store, according to Brice’s complaint. Documents filed with the county indicate that the applicants wanted to build a Dollar General store on the property.

The commission recommended that the board deny the rezoning request. Supervisors instead voted to approve the rezoning despite having heard vocal opposition from neighbors.

Pollack filed a complaint on behalf of Brice, who owns adjacent property on The Hill Road, alleging that the county failed to notify him in writing of the proposed rezoning. The lawsuit that names the Board of Supervisors as respondents claims the county failed to follow several state rules pertaining  to advertisements for public hearings.

Shortly after Pollack filed the complaint but had not served the county attorney, Ham met in closed session with the board to talk about the legal challenge.

The Planning Commission and the Board of Supervisors were to hold at least one public hearing on the proposed amendment to the county zoning ordinance, the complaint notes. Virginia code requires that public notice must state the density range of the proposed amendment and general use and density range, if any, set forth in the applicable part of the comprehensive plan. Pollack claims the public notice does not state the density range of the proposed zoning amendment.

Virginia law also requires that the advertisement refer to places where the public can examine copies of the proposed plans, ordinances or amendments. The advertisement for the proposed zoning change does not include a reference to where the public can see copies.

The complaint claims that Brice, as the owner of an abutting property, did not receive written notice as required by state code. Brice did not receive notice, nor could he actively participate in the April 5 hearing, Pollack contends.