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.
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.
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.
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.