- Last Updated on Wednesday, 09 April 2014 11:43
- Published on Wednesday, 09 April 2014 11:43
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The lawsuit by King George County against Project Faith to get back a 5.53-acre parcel of land on Route 3 (Kings Hwy) is moving forward this week with its second hearing in the Circuit Court.
On April 9 attorneys representing both sides will argue to bolster their recent brief filings.
This will be the first time back in court since the hearing last Dec. 18, when the court ruled against Project Faith’s attempt to get the county’s breach of contract charges dismissed.
After losing that round, Project Faith’s attorney Clark Leming had filed an answer in January to the county’s original charges of breach of contract for the non-profit developer’s failure to meet the deadline for commencement of construction, required by August 1, 2013.
At the same time, Project Faith filed a counterclaim against the county for breach of contract and is seeking $300,000 in damages for money spent on its site plan development, engineering work, design services, design and construction schematics and development of construction documentation.
In response to that, the county filed a demurrer asking for dismissal of Project Faith’s counterclaims, with prejudice. That’s what this week’s hearing is expected decide.
PROJECT FAITH’S COUNTERCLAIM
Project Faith’s counterclaim is based on three allegations.
It claims the county failed to provide the information necessary for it to secure financing for construction from the Virginia Community Development Corporation (VCDC) and through Community Development Block Grant (CDBG) funding by not allowing lease commitments from state and local agency tenants.
It alleges that the county prevented involvement by the King George Department of Social Services (DSS) in the proposed facility through an appointment to the DSS board of someone opposed to the facility, which allowed the appointee “to sabotage DSS’s prospective partnership with the Facility with impunity.”
Project Faith also alleges the county publicly undermined Project Faith’s proposed project in two ways. It alleges that the “the public conduct of county officials,” was detrimental, saying county board members Joe Grzeika and Dale Sisson voiced their opposition to the construction of the facility by “expressing unfounded skepticism as to the construction’s ‘fiscal viability.’”
Project Faith also alleges “the county engaged in a concerted effort to influence public sentiment against construction” by leaking documents to the press “without Project Faith’s knowledge or authorization.”
It says those documents include personal emails between Project Faith’s executive director Froncé Wardlaw and county board member Ruby Brabo, along with a 2010 letter admittedly altered by Wardlaw from Rappahannock Community College, saying that letter “was never submitted by PFI for any purpose related to the Facility.”
The Journal reported last summer that the altered letter had come directly from Brabo who offered it to the paper as an apparent indication of RCC’s continued support.
The paper also reported last summer that other documents and emails were obtained under legitimate requests to the county for public documents under the Virginia Freedom of Information Act. Project Faith’s IRS filings were be obtained by an internet search.
Attorney Edward “Sunny” Cameron, working with county attorney Eric Gregory, filed the county’s demurrer to Project Faith’s counterclaim and a subsequent response to another related filing by Leming.
The county’s responses say none of the alleged actions or omissions cited by Project Faith constitute any breaches of contract.
Further, the county contends that for all three of Project Faith’s allegations, it “has failed to link these alleged actions/omissions to any specific requirement of the performance agreement so as to support its performance theory.” Further, the county states “the performance agreement does not require, or forbid, any of the acts or omissions relied upon” by Project Faith.
The county notes, “the performance agreement does not require the county to provide tenant commitment letters to anyone.”
It also calls that primary allegation by Project Faith “perplexing,” in claiming that the county failed to provide tenant commitment letters for prospective government-affiliated tenants. That’s because it notes that Project Faith had obtained such letters from government agencies, including DSS, and provided them to VCDC. They were likewise included in the county’s application for the CDBG grant on Project Faith’s behalf.
On other allegations, it notes that the county responds, saying, “PFI makes the bold, but wholly unsupported, argument that the performance agreement somehow limits the Board of Supervisors’ or its individual members’ right or authority to speak freely as elected representatives…”
Further, it calls Project Faith’s argument “flawed,” and says, “PFI argues that comments of two members of the county board of supervisors, who were outvoted on the issue of whether to enter into the performance agreement, constitute breaches of the performance agreement because their comments were not in the spirit of ‘collaborative effort’ envisioned…”
It adds, “However, a Board of Supervisors acts through its votes of its members, not through the comments of any one member.”
Regarding alleged leaks to the newspaper, the county states the claim is made “without adequate factual support.” It adds, “PFI admits that its allegations in this regard are entirely speculative.” It quotes from Project Faith’s filings, noting it said the allegations are based on “information and belief,” adding since PFI did not leak the documents, “it stands to reason that the county did so.”
Regarding a request by Project Faith for damages, the county contends there is no causal connection between the breaches alleged by Project Faith and any alleged injury, for the reason that Project Faith was always “responsible for the creation, design, construction, maintenance, operation and entire cost of the Facility” according to the performance agreement.
The county’s demurrer asks for dismissal of the counterclaims, with prejudice, and to grant it such other and further relief as deemed appropriate, including an award of its costs incurred.
The 5.53-acre parcel of land had been donated by the county to the non-profit residential development company in mid-2012, with numerous conditions attached, to construct and operate in perpetuity a facility, referred to as a help center, to lease space to various government agencies and non-profits to house social programs.
King George had filed a breach of contract complaint last fall due to Project Faith’s failure to meet its first major deadline under the contractual conditions, which was commencement of construction by Aug. 1, 2013.
That August date had been requested from the Board of Supervisors as an extended five-month deadline from the original Feb. 28, 2013 date by Project Faith’s executive director Froncé Wardlaw at a meeting on Feb. 5, 2013 and agreed to by the county with formal amendments subsequently drawn up, voted on, and executed.
The county had also provided another 60-days+ prior to issuing a notice of default, to give a potential cure period for Project Faith to meet the commencement of construction deadline, though arguing no cure period was contractually required under the alleged breach.
At a preliminary hearing on Dec. 18, Circuit Court Judge, Hon. Joseph J. Ellis, denied Project Faith’s plea in bar and demurrer, filed last fall, both of which asked for dismissal of the county’s complaint against it to get the land back.