- Last Updated on Wednesday, 07 October 2009 18:38
- Published on Wednesday, 07 October 2009 18:38
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A complaint and motion filed on Sept. 29 in Westmoreland Circuit Court are the most recent in a series of efforts by plaintiffs George and Susan Ripol, Harry and Bonnie Boyden and Mary Porter Hall to compel Westmoreland County’s public officials to follow what they believe is the letter of the law in matters pertaining to establishment of O’Gara Group’s for-profit tactical training base on land it bought from county resident Bryan Chandler.
One component of the Sept. 29 filings is a motion for emergency mandatory and prohibitory injunctive relief. The other is a complaint for declaratory judgment, mandamus and emergency injunctive relief.
The parties named as defendants in the newest round of litigation are the county’s Zoning Administrator Robert Fink, the Westmoreland Supervisors and The O’Gara Group. The complaint and motion filed by attorney David S. Bailey is a direct response to what the complainants assert is county government’s failure to order work to stop on the O’Gara site when the same parties filed a September 17 Board of Zoning Appeals (BZA) challenge to the county’s issue of building and zoning permits to O’Gara.
According to Bailey, Virginia Code Section 15.2-2311(B) should have been observed as soon as the BZA appeal was filed.
“Virginia law provides that once an appeal is perfected to the local government Board of Zoning Appeals, such ‘appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the [BZA] board that by reason of facts stated . . . in the certificate a stay would in his opinion cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a retaining order granted by the board or by a court of record, on application and on notice to the zoning administrator and for good cause shown.”
“No certificate has been filed by the zoning administrator.
“The zoning administrator’s approval of the O’Gara Phase 1B site plan is a ‘proceedings in furtherance of the action appealed from’ within the meaning of” the referenced section of the Virginia Code, “as the approved Phase 1B is an approval for the same project and same land area as appealed first in Phase 1A to the BZA, and Phase 1B is a continuation of the same project, building upon approval of Phase A,” Bailey wrote in the complaint.
Bailer has asserted that Virginia law should have compelled the county government to order O’Gara to cease all project activities until the questions can be decided by the BZA on Nov. 23.
“The zoning administrator’s decision” not to comply with the statute “and the Board of Supervisors’ acquiescence thereto, to continue too grant site plan approvals, contrary to the stated provisions” of the referenced statute “and all applicable case decisions, is willful and intentional, and the zoning administrator will not comply with the mandate of’” state law “unless ordered to do so by this court,” Bailey wrote.
“The only remedy available to plaintiffs,” he then stated, “is an injunction and a declaration of the law and plaintiffs’ rights, before damaging property development and illegal use occurs.”
The complaint similarly asserts that “O’Gara’s continued operation, construction and development contrary to the stated provisions of’ the referenced statute ‘and all applicable case decisions, is willful and intentional, and O’Gara will not comply with the mandate of Virginia Code Section 15.2-2311(B) unless ordered to do so by this court.”
The court is asked to rule that “an emergency exists where defendants are willfully violating the law, and doing so causes further development.”
The requested relief would result in a finding that the referenced statute was in fact violated. All proceedings would be stayed by court order until the BZA has issued its determination.
The court is asked to concur that “the zoning administrator’s approval of the O’Gara Phase 1B [site plan] after a BZA appeal was filed was improper, in violation of law and is void ab initio.”
Additionally, Bailey asks the court to order ‘O’Gara to cease all development and construction operations, and any land use endorsed by the zoning administrator’s approval of Phase 1B.”
The court would further order O’Gara to discontinue “any land use activity in accordance with or related to the zoning administrator’s approval of Phase 1A of the site plan until such time as the BZA has ruled upon such issue; and that this court issue an order consistent with the foregoing against all Defendants upon pain of contempt.”
At press time, Fink was on vacation and the defendants had not yet responded to the Sept. 29 filings that included a letter which Bailey addressed to the Clerk of the Westmoreland Circuit Court.
“Please find enclosed a Civil Action for Declaratory Judgment and injunctive relief for filing with this Court,” the correspondence began.
“Also enclosed is a motion for emergency injunctive relief, and I will be calling your office to arrange for the earliest possible court hearing date.
“It is unclear to this office, given the fact that all justices in the Circuit recused themselves in a prior action against the County, whether they will do the same in this case.
“If so, I would ask that the Clerk’s office inquire if Judge Swett, who has been appointed to hear the Virginia Freedom of Information Act case which was the subject of such recusals, might hear this case as well.
“If this case will be heard by a Judge within the Circuit, I will be asking for the first available Judge and hearing date to do so,” he explained.