Oral opening statement by Kenneth Dufty given on July 26, 2024 in the matter of Kenneth Gordon Dufty v. Northampton County Board of Supervisors, et. al. to the Northampton County Circuit Court. case cl 241230115-00
Plaintiff Kenneth Gordon Dufty, appearing pro se before this court in the matter of zoning map amendment 2023-01 comes so with respect and appreciation for this court’s patience and latitude as a non-attorney attempt to navigate this judicial proceeding.
The plaintiff appears in this courtroom today not to impugn, malign or denigrate the defendant Northampton County or the applicant, Mr. Hionis. The plaintiff reiterates that Mr. Hionis and his company are highly respected and accomplished Virginia Beach developers who have done nothing wrong. As Commissioner Wiggins stated on the record during the March 19 planning commission meeting, this businessman is merely trying to do what real estate developers do, and indeed what we all do in one fashion or another…and that is to invest wisely and hope for a measurable return on that investment.
The plaintiff’s position in this matter has nothing to do with opposing development in the southern tier, or for that matter anywhere in the county. The plaintiff is here to officially ask this court to hold a bench trial to determine if the board’s decision on April 9 to amend our duly zoning ordinance map had any basis in fact, law and in this case verifiable proof. in short, the plaintiff is seeking judicial intervention in an effort to hold his county government accountable and in the hope that we, together, can restore truth and trust in the decisions made- and the conduct of- our duly elected legislative body.
The plaintiff has exhausted every administrative remedy at his disposal to avoid seeking judicial intervention in this precedent-setting re-zoning case. what necessitates this appearance before you now is that the defendant Northampton County has never, not once, responded in a substantive manner to any of the serious allegations this plaintiff has made regarding the underlying assumptions relied upon by the board when unilaterally deciding to amend our zoning map -in a manner which this county has never seen before.
This lack of response and constructive debate precipitated the plaintiff’s filing of the may 6th complaint and request for injunctive relief.
It is the plaintiff’s understanding that zoning issues that are contested or challenged in the Commonwealth of Virginia are settled judicially by applying the “fairly debatable” doctrine. that simply requires an arbiter, the circuit court, to hear at trial the views of the opposing parties and the evidentiary basis supporting those respective points of fact and law. if the arbiter finds, after hearing both party’s sworn testimony and that of their witnesses, that the court could reasonably agree with either side, the government’s side prevails. note that even standing issues are usually fully litigated at trial before the court rules on that contested issue. examples of that can be found in the Supreme Court reasoning in Friends of the Rappahannock, Rowland v. Warrenton, and even Dufty v. Northampton County in 2015.
The final decision by the defendant on April 9 enshrined into land use precedent that a developer can do anything with their property they want. as long as they can fit whatever suits their pleasure on their lot…they can build that. no zoning restrictions, no building code compliance, and no consistency or adherence to the comprehensive plan. Supervisor Coker declared that the county has no control over that. The land is theirs, not ours he said.
Rather than be accountable for that unprecedented land use decree, the only defense the county mounted when challenged by this petitioner on that statement is to file a motion to dismiss this plaintiff’s right to stand at this podium and address your honor because he lives in the wrong place. and because of his 911 address, the county holds that the plaintiff is therefore barred from being able to exercise his First Amendment right to challenge his government for their indiscretions and arguably, malfeasance.
If a county government is able to deny a plaintiff the right to petition his sitting government for a redress of grievances , guaranteed by the first amendment- and protected by the ultimate sacrifice and valor of our forefathers- simply because the address on his license does not please that local government, and that distaste is sanctioned by the courts, we not only have lost our democracy, we have embraced anarchy.
Plaintiff has proven without reprise, that all of the assumptions that the board and the planning commission relied upon to approve the amendment of our zoning map in this case has no basis in fact, reason. and law and plaintiff will prove to this court-if given the chance by – that they were simply made up.
Those points have been cemented into this record in all of the plaintiff’s filings to this court since may 6th.
But it does not bear repeating this morning that the plaintiff believes that the county’s position and final decision in this matter cannot survive judicial scrutiny.
In summary, the plaintiff is simply asking this court to hold a bench trial to hear both parties’ respective positions. Once concluded, the court can apply the debatable doctrine to those points of debate and decide which argument carries more weight.
Plaintiff looks forward to working with the county attorney to jointly file a motion craving oyer, establish a briefing schedule, discovery and witness appearances so we can bring this case to an expeditious conclusion while conserving the time and effort of all parties, including this court.
Typical
Northhampton County has not returned my multiple phone calls over 6 months about address being incorrect.
Northampton Co wasted thousands of dollars of mine via my lawyer and them running him around via zoning & violations of said laws. I believe they should be held accountable and need to repay my family for the time they wasted & money trying to hide a scam.
This is an interesting case that not only touches on several sections of the Bill of Rights of the Commonwealth of Virginia, that being Article I of the Virginia Constitution, but also section 7 of Article II of the Virginia Constitution, wherein is clearly stated that ALL officers elected pursuant to this Constitution, which would include ALL members of the Northampton County Board of Supervisors, shall, before they enter on the performance of their public duties, severally take and subscribe the following oath or affirmation where is stated in clear and unambiguous language as follows:
“I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as ……………….., according to the best of my ability (so help me God).”
That the legislature of the Comm0nwealth wanted more than mere lip service paid to that Constitutional requirement, where elected officials mouth those words and then, when challenged for failing to adhere to the words of the oath, fall back on the part of the oath that says “according to the best of my ability.” proclaiming to those that dared to challenge them that, “Hey, looks like I really didn’t have any ability afterall to actually live up to that oath, and still, you are now stuck with me, sucker,” is evidenced by the fact of the statutory language of §24.2-233 of the Code of Virginia, wherein is clearly stated that upon a petition, a circuit court may remove from office any elected officer residing within the jurisdiction of the court: for neglect of a clear, ministerial duty of the office, misuse of the office, or incompetence in the performance of the duties of the office when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office.
Clearly, the legislature of the Commonwealth has chosen by that statutory language in §24.2-233 of the Code of Virginia to protect the interests of common citizens in the Commonwealth such as Mr. Dufty, and from the facts in this matter, which have been well developed on the record by Mr. Dufty, it very much appears that supervisor Coker and other members of the Northampton County BOS failed to perform a duty enjoined upon them by law, that being to uphold the county comp. plan; and they proceeded without or in excess of their jurisdiction; which was to enforce the comp plan, not gut it and render it useless, which determination to do so was made in violation of lawful procedure, was affected by an error of law and was arbitrary and capricious.
Further, from the record, it very much appears that the determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law was on the entire record not supported by substantial evidence, and to the contrary, the substantial evidence against the determination was simply ignored and dismissed out of hand, thus appearing to deprive Mr. Dufty of due process of law in clear violation of section 11 of the Virginia bill of rights.
So kudos to Mr. Dufty for having the courage to stand up to this apparent violation of his rights pursuant t0 the Virginia Bill of Rights where in Section 2, titled “People the source of power,” it is clearly stated “That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them,” and in Section 3, titled “Government instituted for common benefit.” wherein stated “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community.” and Section 7, titled “Laws should not be suspended,” wherein is clearly stated “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
Am not sure if this is the sub division that they want to build on Cedar Grove on the old trailer park.
If so , no one who lives in this area wants it.
It’s not needed and it will cause problems for those of us who live down here.
If not…..never mind
I think you are correct, but it now makes absolutely no difference what people in the area don’t want, as the BOS made it clear that the comp. plan is worthless and means nothing, so a developer can do whatever they want, and the BOS has to let them, so if you have some land there and want to put up a fifty-story condo complex on a quarter acre to capture the short-term rental trade, have at it because the BOS can’t stop you.