Judge sides with Henrico in HHHunt Wyndham road dispute

The extension had been planned to connect Wyndham with another HHHunt project across the county line in Hanover.

Henrico County has prevailed in defense of its removal of a once-planned connector road between Wyndham and another development in the works in Hanover County.

Following a four-day trial in Henrico Circuit Court, Judge Charles Maxfield on Friday ruled in the county’s favor in its dispute with HHHunt – the developer behind Wyndham and some of Henrico’s other larger communities, such as Twin Hickory, Wellesley and the under-development River Mill.

In his remarks, Maxfield said HHHunt failed in its arguments to prove that the county had violated its vested rights, improperly removed the planned extension of Dominion Club Drive from its future roads plan and improperly notified the state before abandoning a portion of the road, among other claims made in two lawsuits against the county.

Of the vested rights claim, Maxfield said state law protects a property owner “provided he diligently pursues a permitted use” and “expends substantial sums” in reliance on the government’s action.

While HHHunt maintained it had spent millions of dollars maintaining bonds for the road’s eventual construction, Maxfield said it was unreasonable, after 20-plus years since the road first appeared on county-approved plans, for HHHunt to rely on the county to keep the road in its plan.

In ruling against HHHunt’s other claims for relief, Maxfield said of a state statute: “I don’t think the statute was designed to make judges transportation planners for future development.”

He also ruled that the removal could not be considered “arbitrary and capricious” because it was in response to public opposition and safety concerns that he described as valid reasons for the county’s action.

The Henrico Circuit Court building. (Kieran McQuilkin)

HHHunt Communities President Kim Kacani, who sat with the company’s legal team from Hirschler Fleischer for the duration of the trial, deferred comment after the ruling to lead attorney John Walk. Walk said they were disappointed in the ruling and would be considering their options in the coming days.

Walk’s team included fellow Hirschler Fleischer attorneys Alexander Boyd and Andy Sherrod.

About two-dozen attendees were on hand for the ruling, many of them Wyndham residents. Dennis Berman, president of The Wyndham Foundation Board of Directors, provided a prepared statement expressing the homeowners association’s pleasure with the judge’s decision.

The statement called the ruling “a win for the health, safety and welfare” of Wyndham’s 5,000-plus residents and thanked the county for its support.

“While not directly named in the two lawsuits, Wyndham has been closely engaged for the entire two years since the filing,” the statement read. “This has been a very long road to travel, as Wyndham’s related efforts go back more than eight years.”

Deputy County Attorney Tom Tokarz, who argued against HHHunt’s claims with Assistant County Attorney John Gilbody, said the county was likewise pleased with the ruling “upholding its actions to protect the quality of life in Wyndham and surrounding neighborhoods.”

“The County looks forward to working cooperatively with HHHunt on other projects in Henrico, including the new River Mill development,” Tokarz added in an email.

HHHunt had argued that the removal of Dominion Club Drive north of Isleworth Drive would impede its ability to develop the Hanover project – an age-restricted development planned for 366 acres including the nearby Hunting Hawk Golf Club.

A requested rezoning to accommodate the project has yet to go before the Hanover planning commission. HHHunt filed its application for the rezoning in September 2016, two months before Henrico removed the road from its plan.

In its lawsuits, HHHunt had sought a judgment declaring Henrico’s removal an “invalid exercise of its authority.” The dispute was a rare disagreement between the county and a developer that has been active in Henrico – and added to its tax base since – since it started with Wellesley and Wyndham in the late 1980s.

A site plan of the Hanover development. (Courtesy HHHunt)

County-approved plans dating back to 1989, when Wyndham was first zoned, reflect the planned road extension to that property, but Tokarz maintained the road would not be in Henrico citizens’ interest or improve traffic flow or connectivity for Wyndham.

In his closing remarks Thursday, Tokarz argued that HHHunt had approval to extend the road to as far as the county line but had yet to do so.

“Having sat on their rights for over 25 years, it’s our position they don’t have any vested rights claim,” Tokarz said.

Much of the testimony presented over the trial’s final days focused on the vehicular capacity of Dominion Club Drive and its physical capacity, or pavement carrying capacity, to take on additional vehicle trips per day.

Deputy County Manager Tim Foster, who was a county traffic engineer in 1989 when Wyndham was being reviewed, said the development planned in Hanover – a 55-and-up age-restricted community on 366 acres including Hunting Hawk Golf Club – would generate more traffic on the road than a recent Timmons Group traffic study had projected.

Foster was one of several dozen witnesses called over the course of the trial. Others included HHHunt President Dan Schmitt, local developer and Wyndham engineer Webb Tyler, Henrico planning director Joe Emerson, Hanover planning director David Maloney, Wyndham contractor James H. Martin Jr., and construction manager Justin Cornwell of engineering firm Draper Aden Associates.

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