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O’Gara litigation outcomes delayed

Retired Circuit Court Judge Jay T. Swett of Charlottesville spent four hours in Montross this Monday, Sept. 20, to preside over a set of challenges to local government actions and O’Gara Group’s ability to locate its counter-terror training establishment in Westmoreland.
Nothing was resolved during the judge’s brief visit. Ream after ream of boxed paperwork was distributed and at the end of the day the judge ordered the attorneys to present their closing arguments in writing this November. Judge Swett will review those briefs and then render his determination.

Judge Swett made it clear on Monday that he expects whatever determinations he delivers later this year to be appealed to a higher court. As a result, he advised the attorneys to pay close attention to the rules of law when crafting their final arguments.
The retired judge from Charlottesville was appointed by Virginia Supreme Court to hear the arguments after every other available judge declined to entertain the questions. At the end of the day on Monday there were two major issues for Judge Jay Swett to put to rest.
In January 2009 the Westmoreland County Industrial Development Authority and Board of Supervisors met behind closed doors with representatives from the O’Gara Group. When the supervisors returned from that closed door session, the Industrial Development Authority ratified a sales contract with O’Gara Group.
According to the agreement, O’Gara Group would purchase the county’s unoccupied industrial shell building and surrounding industrial park property and the county government would provide O’Gara Group with a letter detailing the zoning rationale that would enable such a facility to be established on the industrial park property and an agriculturally zoned 350-acre adjacent tract which O’Gara Group expected to buy from Bryan Chandler.
Did county officials violate the Freedom of Information Act (FOIA) when they failed to produce in a timely manner the zoning rationale the sales agreement referenced that enables such a facility to occupy those properties?
According to the record, the zoning administrator failed to deliver a timely response to the citizen’s FOIA request because the matter was in the hands of the county attorney. The county attorney has consistently maintained that no such document exists.
Instead, the rationale enabling O’Gara Group to locate on the properties had been developed by a past zoning administrator in September 2008. In March 2009 the county attorney advised The Journal that no additional document would be produced. A subsequent O’Gara Group sales agreement contained no provision for the county to deliver any document of that sort.
In the absence of an additional zoning rationale, the September 2008 opinion issued by the late Gary Ziegler becomes a subject of the pending litigation. Ziegler did not reference O’Gara Group by name but determined that local zoning rules allow such an establishment to be construed as a school. The petitioners in this case assert that such reasoning is flawed.
Another question Judge Swett has been asked to resolve is whether or not county officials acted improperly when they met behind closed doors in January 2008. Petitioners maintain that the closed-door session was improper because some county residents had been previously advised of O’Gara Group’s intention to purchase the industrial park and Chandler properties.
The judge has been asked to additionally address the allegation that county zoning officials violated Virginia law when they delivered a series of zoning approvals that moved the project forward at a time when pending challenges had not been resolved.
The January 2009 local government action immediately generated a mixed response from county residents. The training establishment had made headlines the previous year when residents in other jurisdictions made it known they did not favor having such an establishment in their localities. Another such establishment’s presence in Stafford County generated major controversy that courts have not as yet resolved.
The local government’s succession of O’Gara Group sales agreements were allowed to expire as parties awaited a resolution of the set of litigations that are still pending in the court. O’Gara Group’s Jim Noe recently told The Journal the establishment has invested up to $5 million on the property it bought from Chandler and development of roads, classroom facilities, shooting ranges, driving course and other improvements to the land.
O’Gara Group most recently executed a contract to lease and possibly buy the former Scoville/Arrowhead building that is located immediately adjacent to the tract O’Gara Group already occupies. Noe told The Journal that O’Gara Group intends to purchase the county’s industrial shell building and surrounding industrial property as soon as the questions before the court have be resolved. The establishment initiated its training operations earlier this year.

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