This Tuesday, before a large crowd at the Northampton County Circuit, Judge Revell Lewis heard arguments regarding Ken Dufty’s case seeking relief from the court from the provisions and implementation of the 2015 Northampton County Zoning Ordinance (“2015 NCZO”) which was adopted by the Northampton County Board of Supervisors on December 8, 2015 by a narrow 3-2 vote. After Dufty filed his motion against the County in December, Northampton responded via County Attorney Bruce Jones who filed a demurrer, noting that he felt that Dufty did not have standing to file a claim against the County. The premise being, since Ken Dufty was not listed on the deed of the disputed property (his wife Mary is actually listed on the deed), and, in the county’s eyes is not the ‘owner’, he does not have standing.
Motion craving Oyer
Attorney Jones also filed a motion craving Oyer, which in most cases is used to force a party to place documents mentioned in the pleadings, but have not already been attached within the court record. Basically, a motion to crave Oyer is a “request to require that a document sued upon, or a collateral document which is necessary to the plaintiff’s claim, be treated as though it were part of the plaintiff’s pleadings.”-[ Resk v. Roanoke County, 73 Va. Cir. 272, 274 (Va. Cir. Ct. 2007)]
The county may crave Oyer of all documents that form the basis of Dufty’s claim, as “no intelligent construction of any writing or record can be made unless all of the essential parts of such paper or record are produced. However document for which oyer is craved must be one that is essential to the plaintiff’s complaint. [Station # 2, LLC v. Lynch, 2008 Va. Cir. LEXIS 52 (Va. Cir. Ct. 2008)]
From the court’s standpoint, granting Oyer would allow it to view all material parts of a record so that an objective, intelligent construction of the record can be made without being swayed by the subjective arguments of either party. The hurdle, according to Dufty, is that after attempting to compile the documents to comply with the oyer, the records at the county were boxed, not labeled or indexed, so finding them would be a lengthy task.
New BoS – New Zoning Ordinance?
In January, with the current Board of Supervisors voting to amend the zoning, and bring it back in line with the 2009 zoning ordinance, Dufty attempted to offer a continuance of the case, at least until many of the details and factors come to light in the next few months. County Attorney Bruce Jones responded that he was not interested in a continuance, and felt confident that the county would prevail in its demurrer. He also suggested that Dufty drop the case for the same reasons that he was asking for the continuance.
Circuit Court Tuesday January 28th 2016
Judge Lewis began the proceedings by sustaining the Motion Craving Oyer and directed Dufty to produce the required documents. According to Dufty, he plans to offer an official complaint with the Library of Virginia requesting an audit of the county’s bookkeeping practices.
Judge Lewis did grant Mr. Dufty’s Motion Requesting Leave to File a Brief, scheduling the initial brief due in March, with trial dates to be set in April. Attorney Jones asked the court to argue the demurrer (standing) at the time, but Judge Lewis deferred.
Motion of Continuance
On January 28th, Mr. Dufty filed a Motion for Continuance,“which will give all parties just pause in the deliberation and and consideration of the outstanding issues in this case until the Northampton County Board of Supervisors finishes their work in repealing the contested 2015 Northampton County Zoning Ordinance, a process that is ongoing and is memorialized in the January 12, 2016 RESOLUTION OF THE NORTHAMPTON COUNTY BOARD OF SUPERVISORS REGARDING THE REPEAL OF NORTHAMPTON COUNTY ZONING CODE AND MAP”.
Contained within the motion, paragraph 2, however, are articles that leave the door open to pursue redress through the courts, “Plaintiff here by re-alleges and re-affirms all of the points raised and arguments made to this honorable Court supporting Plaintiff’s request for Injunctive relief that were contained in that Complaint and Request for Injunctive Relief (“Complaint”) which argues in part that the 2015 NCZO was indeed contrary to law and code and presents a clear and present as well as imminent danger to the rural quality of life and environmental integrity that attracted the Plaintiff to this fine county and which encouraged Plaintiff to invest considerable resources in his primary residence known as 6182 Wardtown Road, Exmore, Virginia 23350.”
Note: The Mirror was told by several citizens that during the hearing, Bruce Jones argued that the Duer Resolution is not valid legislatively, and that only one of the previous Board of Supervisors could actually approve it. It was also inferred that the current BoS had possibly instructed Mr. Jones to take this tack. The Mirror contacted Chairman Spencer Murray, and he responded, “The Board’s instructions to Attorney Jones were very specific and did not contain a challenge to the validity of the 1/12/16 Motion and Resolution.” We also contacted County Attorney Bruce Jones and he responded that he did not at any time bring up the Motion and Resolution. Later, we were told that Judge Lewis, not the County Attorney brought up the issue of legality with regard to the validity of Mr. Duer’s motion. The Mirror apologizes for not being able to completely confirm who or what was said during the hearing; however we are in the process of attempting to obtain the audio transcript in order to provide the accurate record.
Moving forward
How this all will play out in court is anyone’s guess. It will be a hurdle get a continuance at this juncture, and as Judge Lewis mentioned, given current state law and recent rulings by the State Supreme Court, as well as here in Northampton, it will also be a hurdle to prove standing for Mr. Dufty.
At the last Board of Supervisor’s work session Monday, the entire Board discussed the amendments in Robert Duer’s Resolution, and has approved a calendar to begin implementation. According to Chairman Spencer Murray, “Our focus is to get those changes to the Planning Commission, hold a joint public hearing and listen to the public before enactment. Yet, we are working together as a five member Board team even where there is disagreement. We will continue to do so.”
Editor’s note: The court documents list Mr. Dufty as the plaintiff, Northampton County as the defendant. A plaintiff is the party who initiates a lawsuit (against a defendent) before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff.
OK….from the “horses mouth”. In March 2014 I became aware that the county’s legal team had misread Virginia Code and they thought that “biomass conversion to alternative fuel” facilities HAD to be allowed in every zoning district by right. Even in residential. So that is what the draft zoning did. After reading that, and knowing that the state would not mandate a bio diesel refinery in all districts without notice to neighbors, I challenged that assessment and the legal team admitted they were wrong. But I found that the adverse uses in ag disticts were, well, disastrous, and indeed if they were in place when we were shopping for a small farm, we never would have purchased this one. So I fought for changes. And in July 2014 I knew a court challenge was going to be necessary. So I paid Paul Watson for a consult, and invited a former member of the Planning Commission to attend. During that meeting, I was told by the former Planning Commissioner that a high-priced law firm had been retained and the county was on notice that a law suit was pending. So I did not hire Paul, and then set out to complete the administrative record, realizing that once a decision was made on the zoning, you cant re-ring the bell; all of your arguments had to be on the record before it closed. In October, I was told by SHorekeeper that they had retained legal counsel, and I was asked to let our email list know that fundraising was underway. And over the next 16 months kept asking both parties if the law firm was still on board, while I spent nearly full time effort building the record. I only found out weeks before the December 8 decision that there was no law firm on board. So there I was. Worked 20+ months to build a record, with no attorney to take it in and no time to bring a law firm up to date on thousands of pages of evidence. So on December 10, I decided I had no choice. Throw in the towel, or go to court myself. I filed a FOIL with the county to get the documents I would need (only to find out county records were not indexed and were in shambles) and on December 22, I filed a Complaint and Request for Injunction until the Circuit Court could review my complaint. And in response, on January 11, 2016 I received an answer from the county attorney demanding that I produce documents (which I simply cannot because the county holds them in 9 large boxes strewed on the floor) and alleging that I lied to the court when I said I have interest in the home I was trying to protect. And the next day, true to their word, the new Supervisors passed a Resolution basically conceding that the issues in my Complaint were legitimate, and resolved to repeal the 2015 ordinance. Within hours, I sent Jones a letter asking him to join me in a continuance…putting the case up on the shelf until the revised zoning could be reviewed….as I just wanted to make sure my 22 months of hard work didnt go up in smoke. If I had dropped the case, as Jones wanted, I could not bring it back up for reconsideration. The answer from the legal team was “see you in court”. So into Court I went, and the headlines that say “DUFTY CALLENGES” the county leave the wrong impression. I went into Court because Bruce Jones dragged me there. Period. And in that hearing, the county attorney argued that the BOS COULD NOT repeal the 2015 ordinance, which he co-wrote, because only a person who voted FOR the 2015 ordinance could offer a resolution repealing it. So the county legal team actually argued against its client, the majority of which want exactly what I want. So that is where we are at. I have again the Court for a continuance, and I would say I am 99.9% sure that all of the revisions being worked on by the Board will resolve all of my outstanding issues (like allowing a chicken manure incinerator on ag land…which my home is surrounded by on all 4 sides), So today, while I write and you read..that is the story. And to paint a picture that I am adversarial to Mr. Spencer, Mr. Duer, or Mr. Hogg is an incredible disservice. Obviously we are all on the same page….it’s just that counsel thing……….