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Demurrers granted in lawsuit against city

Published 11:00pm Friday, October 5, 2012

A Circuit Court judge upheld demurrers from the city and Commonwealth’s Attorney in a lawsuit against the two entities, but the plaintiff has filed an amended motion.

Resident Christopher Dove sued the city and Commonwealth’s Attorney C. Phillips Ferguson, alleging the city had violated the law in its rezoning of a piece of land near Dove’s home, and Ferguson refused to prosecute the alleged crime.

In upholding the demurrers, however, Judge Rodham T. Delk determined Dove had no standing to bring the suit; Ferguson had the discretion not to prosecute; Ferguson had no authority to compel the city to act; and the court had no authority to direct the attorney general to investigate the allegations.

Dove, who lives in the Westhaven Lakes subdivision, filed the lawsuit in June, requesting the court to order the city to enforce its ordinances, rule an alleged violation of the Unified Development Ordinance was a criminal misdemeanor and order a special prosecutor to investigate the parties involved and “take appropriate legal action.”

The issue began when the city rezoned land belonging to Cloverleaf Development LLC near the Westhaven Lakes subdivision, off Pitchkettle Road, in April 2007. The rezoning indicated it would be for 78 detached single-family lots and 114 age-restricted attached units.

But at some point, Dove contends, Cloverleaf changed its plans to include 128 detached single-family lots, and a public hearing was never held to make the change.

The 2009 rezoning ordinance says there will be 78 single-family lots, but that number is not in the proffered conditions.

Then-City Attorney Ed Roettger issued an opinion last year that the city cannot place conditions on rezonings other than those volunteered by the property owner and that a sentence in the ordinance containing the lower number is not legally binding.

Dove says he has found Virginia Supreme Court decisions that state localities can amend proposed proffers and cannot ignore language contained in statutes.

In a demurrer, Ferguson’s office said Dove failed to articulate a basis for the court to grant the declaratory judgment and that Dove had not been aggrieved by Ferguson.

The city said Dove failed to state a claim upon which relief can be granted, failed to establish standing and had not exhausted all the administrative remedies available to him.

Delk agreed on all counts.

“In reading Mr. Dove’s complaint and considering it in the light most favorable to the plaintiff, I find that he has failed to state a cause of action for which he is entitled to relief,” Delk wrote.

Delk continued by saying “Mr. Ferguson exercised his time-honored prosecutorial discretion” in deciding not to prosecute, and that “the Commonwealth’s Attorney has no authority under law to direct or compel public acts by governmental entities.”

Responding to the city’s demurrer, Delk wrote that Dove did not have standing without availing himself of all administrative remedies. He concluded by writing that the court has no authority to direct the attorney general to investigate criminal violations.

In response, Dove filed an amended motion for declaratory judgment. A new hearing date has not been set.

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