As Expected, Developer Files Suit Against JCC, Planning Commission

By Desiree Parker Saturday, April 03, 2010

A development company filed a complaint in circuit court against James City County and its planning commission Thursday after the commission voted not to approve a site plan for a townhome development in Seasons Trace.

In March, commissioners reviewed plans for Autumn West, a 24-townhome development in the neighborhood off Longhill Road. The proposed development is grandfathered in and is developable under Seasons Trace’s original master plan from the 1970s. County staff assured the developer that the site plan complied with county ordinance, and recommended the commission approve the plan.

After several deferrals and an initial approval by the planning commission’s Development Review Committee, the commission decided not to approve the plans by a 4-3 margin (read the previous story here). Legal counsel for the developer, accusing the commission of acting outside its purview and not following the law, says there was no other means of appeal and has therefore filed a civil suit in circuit court. The developer wants the court to allow the building to go forward, and is looking for the county to pay the costs associated with the suit.

Many residents spoke out against the development at several Development Review Committee meetings and at previous planning commission meetings. They cited concerns that too many trees would be removed, retaining walls would be too high, flooding issues in the area would worsen and that the development was too intense for the topography of the land.

Though the developer said stormwater issues would improve with the new development and agreed to a tree preservation plan and a conservation easement, a majority of commissioners still felt the plan was too intense for the topography.

Commissioner Jack Fraley was most vocal with his disapproval, citing several conflicts with the current Comprehensive Plan as reason for his vote against the site plan.

In court documents filed on behalf of Autumn West Investment, attorney Bradley Marrs says his client “received repeated assurances from planning staff that its plans were proceeding in accordance with applicable laws” and that the county’s zoning administrator confirmed that the property’s development was by-right under the original master plan.

He argues that “the matter … was ministerial in nature, i.e., a purely factual and non-discretionary inquiry into whether or not the preliminary site plan complied with all zoning and other applicable laws … the Planning Commission was not empowered to give weight to political considerations, to substitute its wishes … nor exercise any governmental discretion” in the case.

Marrs claims county Supervisor Jim Icenhour’s attendance at a planning commission meeting to speak out against the development was meant to “exert political pressure” on commissioners.

Adam Kinsman, the county’s deputy attorney, told commissioners during the meeting in question that the decision should be based on whether the site plan was within the bounds of county ordinance and law, but that the commissioners had final say over whether this was the case or not. “The buck stops with commissioners,” Kinsman told them at the meeting.

Marrs argues the Comprehensive Plan was created “long after the rights in the Autumn West property had vested” and therefore isn’t applicable. He also claims the commissioners were “arbitrarily, capriciously in violation of AWIs vested rights … and otherwise in violation of applicable law.”

Kinsman told WYDaily in early March that he expected the developer’s challenge and that he would “vigorously defend” the commissioners’ decision.