Ed. — This story originally appeared in the Aug. 17 print edition.
COURTHOUSE – A developer that wants to build a small subdivision along a portion of Princess Anne Road that can flood is suing Virginia Beach after the City Council rejected a conditional zoning application this spring.
The suit accuses the city of entangling the development in an changing series of stormwater requirements, some of which were enacted after the application was filed and were not consistent with the law.
Virginia Beach has focused upon flooding and stormwater following public outcry and the need to spend millions of taxpayer dollars to fix drainage systems that were supposed to work in some neighborhoods. This rezoning denial has been seen by some as a line drawn by city leadership against projects when flooding concerns exist.
The civil suit filed in Virginia Beach Circuit Court by Argos Properties II, LLC, accuses the city of arbitrarily denying the application after approving similar projects nearby, and denying its right to equal protection.
It also says Virginia Beach held Argos to higher standards than the law allows – and that bias against the project by one member of the council – City Councilmember Barbara Henley, a farmer who represents the Princess Anne District – affected the outcome due to a past lawsuit and politics.
Argos seeks damages of $1 million, court costs and attorney fees, and an order for the City Council to reconsider the application. In a procedural response filed this summer, Virginia Beach takes issue with the allegations and the legal arguments supporting them.
Chris Boynton, deputy city attorney for litigation, said during an interview in August that the city considers individual applications on their merits, and he said the city council has the legislative authority to make such decisions.
“In this case, front and center of this denial was the issue of the low-lying nature of the land and potential for flooding,” he said.
Henley declined to discuss specific points due to the ongoing litigation, but she said the public should understand that City Council decisions can be challenged. The city has countered the accusations in the suit, including any implied bias by Henley.
Argos sought a conditional rezoning of nearly 51 acres of agriculturally-zoned land to clear the way for a 32 single-family home subdivision off Princess Anne Road.
A majority of the property, about 38 acres, would not be developed, with housing clustered on the remainder. City staff recommended approval, but the Planning Commission in February recommended against the request, citing concerns about flooding at the entrance of the subdivision. The City Council, on a motion by Henley, denied the application in April.
Boynton said work by the staff and Planning Commission votes form recommendations to the council.
“I think there were some efforts by Argos to satisfy city staff, but, even if staff is satisfied, that doesn’t take away the legislative authority of the City Council,” he said.
“Both of those two steps are purely advisory,” he added. “The only decision-making body is the City Council.”
Virginia Beach seeks dismissal of the suit and challenges the basis of the claims by Argos, including that the proposed development is similar enough to others that have been approved. The city argues that the projects are not comparable, and the City Council had a rational basis for denial.
“City Council’s concern with stormwater performance, flooding and sea level rise is the quintessential example of a rational basis for its decision,” the city response states, noting later that the city’s own plans require it to consider drainage and potential flooding in the approvals process.
The city staff gathered stormwater information in its work to assist the Planning Commission in making a recommendation, the city response says, and Argos misinterprets the process and standards governing it.
In singling out Henley, Argos claims she was on the council during a disagreement with a related company years ago in the development of Foxfire Square – and that members of Argos backed her political opponents.
The “prior battles” influenced Henley’s position, the suit alleges.
Yet the city’s filing states that Argos does not “credibly allege” that the denial was due to animus by Henley.
“One shudders to imagine a jurisprudence that would read animus into the millions of such decisions that local officeholders make each year,” the city’s response says.
The city argued the claim might set precedent “that every time citizens endorse one candidate for a particular office, they lay the foundation for an allegation of animus against any opposing candidates who might win office and later render an adverse decision against them. Fortunately, the courts have never endorsed this bizarre and undemocratic conception of the equal protection clause.”
The developer’s lawsuit accuses the city of holding Argos to criteria that “were not legally required and were not even developed until well after the application was filed.”
Argos submitted its request two years ago, shortly after a nearby project was approved and before Virginia Beach required a preliminary stormwater analysis, according to the suit. That was required by an update to the comprehensive plan that came later, and Argos was told it would need to complete one though its application already was in the works.
The city, essentially, kept adding “ever-changing” requirements, the suit argues, though not all of its stormwater procedures were in place.
In February, representatives of the developers addressed stormwater concerns during a meeting of the Planning Commission, noting that the neighborhood’s system would address flooding concerns and that they would notify homebuyers about flooding in the area.
Brad Martin, an engineer for the developer, said the undisturbed 38 acres would let water “flow over” as it drained to a canal.
Neighbors raised concerns about flooding, as well as traffic in the area. The development would have had a single egress point that could be impassible during flooding on Princess Anne Road.
“There is a roadway that floods, that prevents the safety of those citizens, and I think that it’s our responsibility to look at whether or not this is the right time for development in that area,” said Dr. Karen Beardslee Kwasny, an educator from Ashville Park who represents the Princess Anne District on the Planning Commission.
She made a motion to recommend denial of the application, and the motion passed, 7-3.
The developer requested a deferral before the matter went to City Council, but Henley moved the application be denied in early April. That motion failed, but the matter was denied during the next meeting in April, also on a motion by Henley.
“At some point, due process and fundamental fairness require that the city council review this proposal under the existing city codes and regulations and act,” Anne Crenshaw, a lawyer representing the developer in that process, told the City Council.
“The main thing is that we learn from our mistakes of the past,” Henley said later in the meeting. “And I think one of the things that we are learning is that we did not properly require some of our past developments to go through the rigors of determining stormwater conditions before a rezoning.”
The city is trying to change that, she said.
The vote by City Council was unanimous.
Henley mentioned the suit in August during a meeting of an advisory committee and amid a discussion of the Harvest Farms development, another project that may face challenges as it seeks approvals – though they are much different.
“It’s extremely important to make certain all these steps are appropriately handled so that, if anything is challenged in court, the decision is upheld,” Henley said at the time. “We have to remember that process.”
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