The record in the proceeding known as the drafting and adoption of the 2015 Northampton County Zoning Ordinance is replete with comments from this writer that the Board of Supervisors (BOS) was not being properly advised on legal issues pertaining to this matter from its counsel, the legal team consisting of County Attorney Bruce Jones and assistant Bev Leatherbury.
My interest in ensuring that the county supervisors were being properly advised on Code and case law is personal, and it reaches back to my experience with county government over twenty years ago.
You see, in 1993 I was a millwright in a steel mill in Watervliet, NY and had been so for 10 years. I was at the top of my pay scale, and we were quite comfortable on that salary. But shortly after the November elections, I got a call from a newly-elected Legislator that the Republican majority in that governing body had picked me to be Executive Director of the Environmental Management Council, an entity established under state law to advise elected leaders on issues of the environment and natural resources. Naturally, just being a wrench in a local mill, I declined. I had no government experience, although had successfully sued the state on several occasions (by the seat of my pants) as head of a 3,000 member environmental group. But they insisted….repeatedly. So I took a pretty sizeable pay cut and on January 2, 1994, I took the helm of the 19-member council.
I must admit, I had never even heard of this group, even though the former Executive Director had been on the county payroll for years. And I really did not know what they did…only to find out they really did not do much in the past. But as I researched the charter of the council, I realized that it was established to be a very important tool in helping the elected officials traverse what was then, and is now, a minefield of environmental regulations and laws.
Not being an attorney (although I was studying law to become a certified paralegal), I immediately realized that my lifeline to advising the Legislature and Town leaders on law and process hinged on establishing a working relationship with the attorneys assigned to the executive and legislative branches of government. There was no question that I was going to be representing my county in state administrative proceedings, and that I was going to need advice, guidance, and sheparding by experienced jurists well schooled in environmental and procedural law.
So I wrapped my newly strung legislative umbilical cord around the attorney for the Legislature and the County attorney, and leaned heavily on them to ensure that I followed county and state law on all aspects of my new duties, including procurement, competitive bidding, grant writing, and administrative procedure. And they did their job and kept me out of trouble, schooling me in the ways that county government worked and lecturing me on how it didn’t work. And for the next 8 and a half years, our group managed to defend our county from a myriad of environmental assaults, including rock mines, waste incinerators, coal burning plants, landfills, and other adverse proposals.
Had it not been for a sound, credible, and responsible legal team on both the legislative and executive level, we never would have been able to be as effective as we were.
That is why the behavior of Northampton County’s legal team hits so close to home. Indeed, when Charles McSwain was asked on March 11, 2014 by a Planning Commissioner to answer the question of “who wrote the draft 2014 zoning ordinance”, his response was that it was penned by two members of the county ‘s legal team, among others.
At least five former Planning Commissioners, as well former supervisors have placed onto this record that the new zoning ordinance, written in part by our legal team, is a blatant violation of the Code of Virginia, and many have said that it stands in stark contrast to well settled case law. Indeed, it seems that it is incredibly hard to meld the newly adopted zoning ordinance with even a casual relationship to Virginia and federal code and law.
So now we have a new majority of supervisors on the Board, and they have made it quite clear that they do not support the new zoning ordinance. So how do they get the 2009 zoning ordinance, which WAS based on code and law, into effect and repeal the allegedly illegal 2015 land use law? They have to ask their legal team….the same team that wrote the hopefully ill-fated mandate. And to boot, we have to pay, with our hard-earned tax dollars, for that legal advice.
What we have here is what can only be characterized as a stinking quagmire. Asking our present legal team how to undo the damage that they have indeed helped perpetrate on the citizenry of this fine county is like asking the proverbial fox how to secure the door on the hen house.
In order to move this county forward on a sound legal footing that restores confidence in our local government’s ability to adhere to law and code, we need professional, respectable, and reliable jurists to help us right this administrative ship. The only question remaining: where are we going to find them?
Ken Dufty
Exmore, Virginia
About the Author
Thank you Ken And bless you
Bless you and Nat also, Joe. It is only because many, many people like you stepped up to the plate and fought to restore credibility and honesty to county government that are all enjoying a new day in Northampton County. It is like a huge weight has been lifted off the constituency, and we are all breathing a collective sigh of relief. The power of the people, and the honesty and courage of the majority of the BOS as seated, have joined in exercising the ever-atrophying muscle of this once-commanding democracy, and we should all flex and feel stronger as we move forward with the heavy lifting that lies ahead. Congrats to all who spent the last three years defending this great and unique county. Was it hard? yes. Was it worth it? Absolutely.