Sovereign immunity protects Shenandoah County from a lawsuit seeking the return of 300 acres to the former owner’s family, the government’s attorney claims.

Zula Wagner, who died April 2, 2012, left the land in her will to the county. The Board of Supervisors voted in March 2013 to accept the land and the county named the site the Mack and Zula Wagner Park. Wagner’s will requires that the county use the property only for educational, recreational and conservation purposes. The land ownership would revert to Wagner’s survivors should the county fail to abide by the conditions set in the will.

The executors of Wagner’s estate, Allen E. Miller and Tracy L. Williams, claims in a complaint filed Oct. 18 that the county went against the late owner’s wishes and has made no effort to promote the property as a park. The complaint claims the county must return the land to Wagner’s survivors as a result of failing to comply with the will in the six years since the supervisors accepted the gift. Harrisonburg attorney David A. Penrod, of the law firm Hoover Penrod, filed the complaint on the executors’ behalf in the Shenandoah County Circuit Court.

But County Attorney Jason J. Ham claims in a recent filing that sovereign immunity protects the local government from such a lawsuit. Ham’s special plea filed earlier this month states that the county, as a political subdivision, has sovereign immunity. No statute or other law waives the county’s immunity to the allegations in the complaint. Sovereign immunity protects the county with respect to the allegations in the complaint and the court does not hold jurisdiction over the matter, the plea states. Ham asks the court to sustain the plea of sovereign immunity and dismiss the complaint.

Penrod said Monday he couldn’t speak about the pending lawsuit.

Circuit Judge Kevin C. Black entered an order dated Nov. 14 in which he recused himself from the case. Black previously had represented Zula Wagner and the people settling her estate, the judge’s order states. A copy of the disqualification order has been sent to the chief judge of the circuit for the designation of another judge to preside over the case.

The plaintiff’s allegations, while possibly true, do not provide enough of a basis for legal action against the county, the defense asserts in a demurrer filed Nov. 7. Ham bases his demurrer on several grounds, one of which claims that Zula Wagner’s will calls for the property to revert to individuals specifically named in the will. Ham argues the will does not call for the property to revert to Zula Wagner’s estate or to the executors of the estate.

No judge has made a ruling on the defense special plea or the demurrer as of Monday.

Failure by the county to abide by any of the terms and conditions expressed in Zula Wagner’s will would cause the property to revert to her kindred, her beneficiaries, according to the complaint.

“In the more than six years the County has owned the property, the County has failed to observe and abide by the terms of the will,” the complaint states.

The will obligated the county to provide enough funding to cover the maintenance of the park, according to the complaint. The county has not significantly promoted the property as a park or made the site available to the public, the complaint claims. The county has not put signs at the property to identify the site as a park or to invite the public to use it; has not built structures or buildings, trails or paths for walking, jogging, hiking or biking through the park, according to the park; not developed picnic or camping areas, nor installed benches or chairs.

The county also leases part of the property to a farmer for agricultural use, against a condition of the will, the complaint states.

The Board of Supervisors voted 4-2 on March 26, 2013, to accept the gift. A month prior to the vote, previous County Attorney Jay Litten advised supervisors that failing to abide by the conditions of the will could open up the county to litigation by Wagner’s heirs. However, Litten did tell supervisors that the county could allow a farmer to use part of the property as part of an educational demonstrative project.

– Contact Alex Bridges at abridges@nvdaily.com