The following letter was submitted by citizen advocate Ken Dufty. Dufty questions whether the Northampton Planning Commission did due diligence regarding a Special Exemption Request to build a new subdivision in the county. Are exemptions like this opening a pandora’s box that will lead to less than optional outcomes for the ordinary people of Northampton?
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I appreciate the information as provided below on Mr. Hand’s attempt to obtain a special exception to our land use law as he attempts to develop a subdivision with a one-lane access road.
My concern with the Special Exception Request by Mr. Hand to skirt our zoning ordinance’s road-width requirement while developing his subdivision plan is three-fold.
First, as you may know, a Special Exception from a Zoning Ordinance has to be based on quantifiable and verifiable evidence of probative value and my lay research seems to yield that high courts have ruled repeatedly that ‘cost is not determinative’ when an applicant argues that it is ‘cost prohibitive’. In short, what is seemingly too ‘expensive’ for one applicant may be a small change for another.
A Special Exception application has to seemingly meet the burden of proof that there are insurmountable and not self-inflicted circumstances regarding engineering and natural resource impacts that make it nearly impossible for proposed construction or plans to meet the terms and conditions required by a zoning ordinance. In this case, the applicant, Patrick Hand, wants to develop his subdivision which was originally approved with a 12′-wide access road (which does not meet VDOT road-width standards) even though our revised subdivision ordinance requires an 18′ lane width.
Mr. Hand merely claims that he cannot meet the requirements of the revised ordinance by “mentioning” that the property has a conservation easement by the Nature Conservancy and that it would be too expensive to undertake and prejudice the existing landowners due to an old road maintenance agreement. He also “mentions” wetland impacts as a reason why he should be given a pass on the adherence to our prevailing zoning ordinance.
However, my first concern is that he has submitted no: wetland delineation study and report; no professional surveys and engineering drawings discussing alternative routing; plat plan; and cost study. In short, his request appears to be only based on conjecture and mere unsubstantiated claims in my opinion. Finally on this first point, if Mr. Hand is able, in a subsequent filing, to prove that widening his narrow, single-path current access road to meet the requirements of our prevailing subdivision ordinance has an unavoidable impact on an onsite wetland, he can simply determine those impacts via an independent wetland delineation study and then purchase wetland mitigation credits from the Nature Conservancy and proceed with his mandate to widen the ingress and egress lanes of the subdivision road and comply with our county land use law.
Second, the application was accompanied by a statement of support for Mr. Hand’s violation of our pertinent land use law by Mr. Erik Zimmerman. However, there was no affidavit from this witness as to who this petitioner is or what his relationship is to this project and the applicant.
Third, and at the heart of my concern about this issue, is the fact that this application was accepted by the Planning Department and passed on to the Board of Supervisors and the Planning Commission with absolutely no documentation that the applicant’s pleading had any substantive or evidentiary basis.
Once an application is stamped in and passed on to the elected and appointed gatekeepers, it becomes a game-changing and serious step in what is a formal review, culminating in a final decision by the Board for either denying or approving a request. That final decision starts the 30-day clock during which an applicant can appeal that official act to the Circuit Court which in turn requires the municipality to expend considerable taxpayer resources to defend its decision to deny an applicant’s petition.
As you remember, the fact that the Axios, LLC application was inadvertently stamped in by the Planning Department and passed onto the Planning Commission and subsequently the BOS in 2021 in spite of Acting Zoning Administrator Kelly Lewis’s staff report that the Planning Department should never have officially accepted it. Because her refusal to officially accept the Axios application for her stated reasons was overridden and ignored by you, Susan McGhee, that act resulted in all of Northampton County’s taxpayers being sued by the applicant(s) and cost those otherwise innocent taxpayers considerable resources to pay our county attorney and personnel to defend the BOS denial of the application. Note I understand Judge Lewis’s recent Circuit Court decision to uphold the BOS decision to deny Axios’s attempt to override the BOS’s decision to deny that attempt is being appealed, a proceeding that will again cost the taxpayer’s resources that could be arguably better spent elsewhere and could have been avoided if the application was turned back before being passed on to a more formal venue.
Lesson learned? We need to have a Planning Department checklist that is more responsive and protective of our taxpayers so applications that are incomplete, in violation of our Comprehensive Plan (as in the Axios ap), and devoid of evidence of probative value as in this instant matter by Mr. Hand are not passed on to the Planning Commission and the Board of Supervisors. That appears to be a reasonable approach to ensuring the county’s interests are protected and that negative taxpayer impact and expenditures can be minimized.
In closing, it is nearly unfathomable that the several-paragraph staff report by Paul Watson who is acting as our Zoning Administrator although he appears to have no land use formal training and upon information and belief is not AICP certified which is a requirement for the position, appears to this writer to have left the county and its residents in serious legal jeopardy,
To wit, the staff report simply recommends that the BOS and Planning Commission deny the application because it will “set a precedent” if approved and that the county could expect more similar requests to violate our zoning ordinance if approved.
If Mr. Hand decides to challenge the BOS’s denial of his application seeking a special exception to our zoning ordinance, in Circuit Court our county attorneys may-and probably will be forced to defend Mr. Watson’s reason suggestindenial, and will have to “prove” to the Court that awarding the applicant (a permit) in this case will indeed “set precedent” so others will follow. The question this raises is “How do you prove that with empirical evidence of probative value”. If I were the applicant, my first and compelling argument in an appeal of the denial would be that the basis for that denial, which is Mr. Watson’s brief staff report, is an iconic and irrefutable example of an “arbitrary and capricious” decision.
The staff report should have outlined all of the reasons that are mentioned in the first three points to this letter, and the application should have never been accepted by the Planning Department until all of the evidence, reports, and drawings supporting a special exception were submitted by the applicant.
I am hoping that this repeated behavior by your Planning Department and you as Director can be halted and that more safeguards can be put in place to ensure that future incomplete, non-compliant, and unacceptable applications for land use and/or exemptions therefrom are not passed on to a formal review until they are complete and consistent with our land use laws.
About the Author
Paul Watson was disbarred for stealing money from one of his clients & this in itself should disqualify him from working in a public office.
I totally agree. He was dishonest with me. I believe he committed fraud against me. He should not be in any capacity where he is making decisions for anybody.