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County seeks to dismiss Swift Creek plan lawsuit: Landowners contend that a moratorium on growth violates property rights
(Richmond Times-Dispatch (VA) (KRT) Via Acquire Media NewsEdge) Aug. 23--Chesterfield County has asked to dismiss a lawsuit filed by 11 landowners seeking to toss out revisions to the county's comprehensive plan in the Upper Swift Creek area.
The county says in its response to the suit that none of the plaintiffs have yet been affected and argues that the county's master plan is merely a guideline for growth.
A group of 11 Chesterfield County landowners last month sued the county, alleging revisions to the plan -- specifically establishment of a growth-management boundary in western Chesterfield -- amounted to a violation of property rights.
Much of the suit's argument rests on claims that inadequate notice of public hearings was provided by the county. The county claims in its response that local newspaper notices satisfied state law.
"It wasn't made clear, for example, as to what areas would be covered by this deferred growth moratorium area," said Jack R. Wilson III, an attorney for the landowners.
The Upper Swift Creek Plan Amendment was revised in June after a long and heated process kicked off in January by a new Board of Supervisors that wanted to tighten controls on development in a growing and environmentally sensitive area.
The growth-management boundary is a flexible line that suggests restricting growth in a portion of the plan area until public facilities become available.
It will initially affect 4,300 acres in the western portion of the plan area, where the plaintiffs say it might dramatically reduce their property values by limiting what they can do with their land.
"The Plan Amendment is, by law, a nonbinding guide and cannot, as a matter of law, create a 'moratorium' on future zoning," Chesterfield County Attorney Steven L. Micas said in the county's response.
"We just have a difference of opinion on the impact and importance of this comprehensive plan," Wilson responded yesterday. "And even a comprehensive plan you have to give proper notice to the public of what is being considered."
"The Plaintiffs have not alleged that any land-use decision has ever been affected, let alone determined, by the Plan Amendment. Accordingly, no case or controversy currently exists and, therefore, this lawsuit is premature and not ripe for determination," Micas wrote.
Chesterfield Circuit Court will set a hearing on the motion to dismiss. If not granted, the case would go to trial.
John H. Foote, former Prince William County attorney turned landowner lawyer, is representing the plaintiffs with Wilson. Foote three years ago convinced the Supreme Court of Virginia to throw out growth controls implemented in Loudoun County in 2003.
Contact Wesley P. Hester at (804) 649-6976 or whester@timesdispatch.com.
To see more of the Richmond Times-Dispatch, or to subscribe to the newspaper, go to http://www.timesdispatch.com.
Copyright (c) 2008, Richmond Times-Dispatch, Va.
Distributed by McClatchy-Tribune Information Services.
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