Developer sues Hanover supervisors over apartment project denial

Summerlyn 2

A rendering of the four- and five-story building that would house the age-restricted apartments. (BizSense file images)

Hanover supervisors’ rejection of what would have been the county’s first 55-and-up rental community has drawn legal action from the project’s developer.

Larry Shaia and project collaborator Jesse Lennon filed a lawsuit challenging the board’s 4-3 decision in November denying their proposed Summerlyn project, a $27 million development that would have added 97 age-restricted units beside Shaia’s Cambridge Square Apartments at 7147 Mechanicsville Turnpike.

The complaint for declaratory judgment argues that supervisors who voted against the apartments erred in calculating the project’s allowable density based on net acreage. Such a calculation would restrict the number of units to 81 due to protected wetlands on the property.

SummerlynHearingShaia 1

Developer Larry Shaia addressed the board before the vote.

The 97 units were proposed according to a gross acreage calculation, which, in the November hearing, Shaia and Hanover planning staff had maintained that the county had historically used to determine project density.

The suit argues that the supervisors, in voting down the project, cited a section of the county’s zoning ordinance that calls for net acreage to be determined by subtracting half of the undevelopable parts of the project site. About a third of Summerlyn’s 6.5-acre site undevelopable due to the wetlands.

However, the cited section in the ordinance is not intended for calculating maximum density, the suit states, adding that the ordinance “has no fixed density ceiling” and that the section is not referenced in the county’s comprehensive plan, which the supervisors also referred to in voting down the project.

“The Board erred in believing that it was constrained by (the section) to reject the application,” the suit states, adding that the board “further erred in believing that it was constrained to follow the recommended density guidelines in the Comprehensive Plan,” noting that the Planning Commission had previously voted 7-0 to approve the rezoning.

SummerlynHearingHerzberg

Cold Harbor District Supervisor Michael Herzberg during the November meeting.

Voting against the project were supervisors Michael Herzberg, Susan Dibble, Sean Davis and Brent Helmick. Canova Peterson, whose Mechanicsville District includes the project site, supported the proposal along with Robert Monolo and Faye Prichard.

The comprehensive plan had been updated two months prior to the board’s vote with the word “gross” removed, according to planning staff. County planners and Shaia had noted in the hearing that Summerlyn had been proposed prior to that change, based on previous approvals for Cambridge Square and other developments that were calculated according to gross acreage.

Describing the comprehensive plan as an advisory document, the lawsuit argues that the board is not constrained by the plan’s recommendations, and it adds that state law requires that zoning decisions be based on a locality’s police powers, such as whether a development would adversely affect public health, safety and general welfare.

“The Board’s action was arbitrary and capricious insofar as it bore no reasonable or substantial relation to the public health, safety, morals, or general welfare of the residents of Hanover County,” the suit states, adding that the denial has “significantly impaired Plaintiff’s property rights, depriving them of millions of dollars that would otherwise accrue from developing the Property as an age-restricted apartment complex.”

The suit requests that the denial become null and void and that the board be directed to approve the rezoning and enjoined from taking action to prohibit the development.

The case was filed Dec. 7 by O’Hagan Meyer attorneys Thomas Wolf and Joseph Rainsbury. A request to Wolf for comment was not returned Monday.

Reached last week, Shaia said he had no comment.

HanoverCourthouse

The Hanover County courthouse building.

A response to the suit was filed last month by Hanover’s county attorney’s office, which made a motion requesting that additional documents relating to the case be entered into the record. The requested documents include a staff report and PowerPoints presented in the hearing, a video recording and transcript of the hearing, meeting minutes, and other documents.

County Attorney Dennis Walter is representing the board along with Deputy County Attorney Rebecca Randolph and Assistant County Attorney Leah Han. Walter did not return a request for comment Monday.

A pretrial hearing in the case is scheduled March 15.

The lawsuit is at least the second in the past year from a residential developer challenging a denial from the board.

Last spring, Rogers-Chenault Inc. sued the board over its denial of Rock Springs, a 176-lot subdivision proposed along Winns Church Road in southwest Hanover. Wolf and Rainsbury also brought that case on behalf of Rogers-Chenault, which argued that supervisors had no substantive reason for rejecting the proposal because the project was in line with Hanover’s land-use policies.

A judge dismissed that case in December. Rogers-Chenault is planning to appeal.

POSTED IN Commercial Real Estate

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Bruce Milam
Bruce Milam
21 days ago

Good for Larry! The Hanover BOS changed the game on him, disallowing a wonderful development which is needed by Hanovers aging population. Shaia has proven himself as a quality apartment builder in Hanover and as a home-boy should get some leeway politically, not treated the way he was by the Board. He’s a known commodity and an asset in that community.

Peter James
Peter James
21 days ago
Reply to  Bruce Milam

Spot on, Bruce. I couldn’t agree more.

Scott Sirles
Scott Sirles
21 days ago

Age restricted housing provides the following to Hanover: (1) tax revenue and (2) no additional schools required.

Peter James
Peter James
21 days ago
Reply to  Scott Sirles

💯 !

Getting this development is a win on every front for the county. Plus, as Bruce pointed out, Larry Shaia is a very prominent, well-known developer who has a track record of of very good, high-quality projects.

Not a good look at all for the county BOS.

Jay Emory
Jay Emory
21 days ago
Reply to  Peter James

Is it just me or is Hanover’s resistance to ALL development becoming more and more common? I understand they don’t want to be Chesterfield (Moseley) or Henrico (Short Pump) but where, exactly, do they expect to go when they age to the point that their multilevel, 2,000+ sq ft homes are no longer practical? It’s starting to become exhausting reading about Hanover’s constant pushback on any sort of improvements (or, you know, books).

Peter James
Peter James
20 days ago
Reply to  Jay Emory

Fully agreed, Jay.

Carl Schwendeman
Carl Schwendeman
21 days ago

Hanover does need more housing due to the housing shortage.

Daniel Graves
Daniel Graves
21 days ago

Obviously no one that’s commenting on here that approves this project has to travel down 360 daily. The traffic is so bad they are moving the high school and middle school in the next several years a few miles down 360. They are currently expanding 360 from 2 lanes to 3 lanes and the construction is expected to take another 2 years to complete. With the construction and the terrible traffic this area is a huge pain in the a$$, almost worst than Short Pump. Maybe the BOS is finally taking in consideration the people they work for. Seems as… Read more »

Last edited 21 days ago by Daniel Graves
Jay Emory
Jay Emory
20 days ago
Reply to  Daniel Graves

Okay, so I’ll ask again. Where would you like all of the quickly-aging Baby Boomers to go once they age out of a traditional home? I suppose they can move to the age-restricted developments in Short Pump and Moseley. Age-restricted development is the absolute best development because it has little to no impact on both things you mention: schools and traffic. Obviously 55+ communities do not bring with them children, especially school-aged. Additionally, as people age, they drive less. This idea that people can simply age in a rural area with a two-story house is absurd. I suppose residents can… Read more »

Peter James
Peter James
20 days ago
Reply to  Jay Emory

Don’t hold your breath waiting for a “solution”, Jay.

Oppositional kvetching is rarely — if ever — accompanied by any kind of viable solutions, because — quite unfortunately — the concept of “we don’t want (fill in the blank)” usually has the unspoken corollaries of “…and we don’t care” and/or “…it’s not our problem.”.

David Humphrey
David Humphrey
15 days ago
Reply to  Daniel Graves

You really think they are moving the schools just because of traffic? The great thing about senior housing is the limited traffic they do create is usually at off peak times. This use would allow some tax revenue without having to provide more expensive services like schools. Also, by concentrating housing in areas like this, which can better handle it, it can help relieve pressure to build housing units in other areas of the County.

Last edited 15 days ago by David Humphrey
Justin Ranson
Justin Ranson
20 days ago

Hanover keeps ignoring it’s own land use requirements, and it’ll eventually bit them in the rear.