Port 460 opponents file to keep suit blocking rezoning alive
Published 5:49 pm Tuesday, March 7, 2023
Residents who are suing to have the city’s rezoning for the Port 460 Project overturned filed a brief March 23 saying they have standing to pursue their case.
Dale Roberts, Gerard Celia and Sterling Taylor filed suit in Suffolk Circuit Court last October seeking to block City Council’s decision to rezone property for development of the Port 460 Logistics Center on 2925 Pruden Boulevard.
Council’s approval of the rezoning came Sept. 21 with a 5-3 vote after several months of public outcry from local residents. It allows the rezoning of the 540-acre property off of U.S. 460 that would bring with it 4.7 million square feet of development with 10 warehouses and five commercial retail buildings.
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The new brief responds to the city’s contention that the three do not have standing to challenge the rezoning ordinance, along with arguments that the action was “unreasonable and arbitrary” should be heard by the court.
City Attorney Williams E. Hutchings Jr. filed a response to the original suit Dec. 27 asking the court to dismiss the lawsuit filed by the three plaintiffs, claiming they have a lack of standing in the case and that the record shows City Council’s decision to grant the rezoning was reasonable.
“The Plantiff’s lack standing because they have not alleged facts that show a particular harm,” the city’s filing states. It cites areas where they claim it will infringe on their quiet enjoyment of their property, that it poses safety issues on the roads and that it will harm well-water and the health of the plaintiffs.
“…Virginia Code states to demonstrate that they are an ‘aggrieved’ party to have standing to challenge this land use decision in the Court since the plaintiffs are not the owners of the land that is subject to the rezoning, they must show they have an immediate, pecuniary and substantial interest in the litigation, and not an indirect interest.”
The city’s response to the original suit also states that the Council’s decision on the rezoning was not arbitrary, not capricious, but reasonable.
“If the reasonableness of the underlying zoning is, at the very last ‘fairly debatable’ then it does not matter whether the landowner’s application was reasonable or even the best use of the land.”
The City Attorney’s response goes on to say both the Planning Commission and City Council voted to approve the rezoning after hearing evidence both in favor and opposed.
“This illustrates the Norton count’s definition of ‘fairly debatable’ wherein objective and reasonable persons considered all of the evidence and reached different conclusions.”
He also states in the city’s filing that then-Interim Director of Planning Kevin Wyne showed that the proposed use of the land was indeed consistent with the Comprehensive Plan.
“In fact, it was pointed out that, the area surrounding the land subject to the rezoning is zoned for many uses, including office, light industrial, schools, agricultural and residential,” according to the city’s December filing.
The plaintiffs’ response, filed by Randall, Page and Bruch Attorneys at Law, cites a state Supreme Court decision where residents in Hanover County sought to block the Board of Supervisors approval of rezoning for a large distribution and warehousing factory.
“The Plaintiffs here occupy or own sufficiently geographically proximate properties to the subject site, and alleged a direct cause-and-effect relationship between the Board’s challenged decision and specific, detailed harm to the Plaintiff,” the brief states. “As such, the Court should find that the Plaintiffs have standing to bring this action.”
Thursday’s filing goes on to contend Council’s approval of the conditional zoning ordinance was “unreasonable and arbitrary” for a number of reasons.
“First, the approval was given in the absence of a valid and legally binding proffer from the application,” the brief states. “ Next, the Council considered misleading economic and jobs data and an incomplete traffic student in their consideration of the application.”
The filing contends approval came through use of a “special district” planning designation. “The criteria and location for which are so vague and de minimis that it causes the challenged zoning decisions to be made by random or personal choice rather than in harmony with the adopted Comprehensive Plan of development for the community.”
It goes on to say that the approval is also “wholly incompatible with the City’s 2035 Comprehensive Plan.”
The brief then cites several other cases in support of their argument that the action is unreasonable and arbitrary.
In the filing, the plaintiffs also state the staff report for Sept. 21, 2022 contains two different sets of proffers from the developers. Later in the suit, they allege that this was a “bait and switch” move that does not comply with city or state code.
The brief concludes that the plaintiffs in the case would suffer direct and negative effects due to the rezoning and that they have standing to challenge the City Council’s action to approve the zoning ordinance.
“Given this presentation of probative evidence of unreasonableness, procession to trial is property,” according to the document. “As such, the respective demurrers should be denied.”
A news release provided for the residents states that the legal effort is being funded through donations to the Say No to Warehouses Legal Fund, noting that this group is accepting donations through Cash App and Go Fund Me to help fund the legal fight.
The Matan Companies, developers for the Port 460 Project, have filed responses in the case supporting the city’s contention that their action was proper and that the plaintiffs in the case do not have standing. The company filing asks the court to dismiss the lawsuit.
In November, the court also released all claims against each of the mayor and city council members as individuals, deciding the suit would stand only against the City Council as a legislative body.
The court has scheduled a hearing in the case for 11 a.m. May 9 in Suffolk Circuit Court.