A rendering of the four- and five-story buildings that were to house the age-restricted apartments. (BizSense file)
A legal fight over a rejected apartments development in Hanover is headed to state appeals court, after a lower-court judge sided with county supervisors’ denial of the project nearly a year ago.
Attorneys for local developer Larry Shaia and project collaborator Jesse Lennon, whose proposed Summerlyn apartments would have been the first 55-and-up rental community in the county, filed a notice last month that they will appeal the judge’s decision to the Court of Appeals of Virginia.
The notice followed the Aug. 9 order by Hanover Circuit Chief Judge Victoria Willis to dismiss the case with prejudice, meaning it couldn’t be appealed or retried at the county level.
Willis’s order referred back to arguments made by Hanover’s legal counsel over the course of the case, which has been playing out since it was filed last December.
A month before the case was filed, the Hanover board had voted 4-3 to deny Summerlyn, a $27 million development that would have added 97 age-restricted units beside Shaia’s Cambridge Square Apartments at 7147 Mechanicsville Turnpike.
The complaint argued that supervisors who voted against the apartments erred in calculating the project’s allowable density and relied too heavily on recommendations in the county’s comprehensive plan, which had been updated two months prior to the board’s vote – and two months after Shaia and Lennon had applied for a rezoning for the project.
Developer Larry Shaia addressing the board before the November vote. (Screenshot)
The update effectively changed the density calculation for such projects from a gross-acreage to net-acreage method, which restricts the number of units to 81 due to protected wetlands on the property. Shaia has contended that Summerlyn was proposed prior to that change based on previous approvals for Cambridge Square and other developments calculated according to gross acreage.
Describing the comprehensive plan as an advisory document, the lawsuit argued that the board was not constrained by the plan’s recommendations and 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.
However, in requesting that the case be dismissed, Hanover argued that the project had been given proper consideration and that the board’s denial was reasonable.
“Compliance with a locality’s comprehensive plan is one of the items that the Code of Virginia requires local governing boards to consider when reviewing a rezoning application,” the county said in its filings. “As the legislative record…clearly demonstrates that the Board’s action was reasonable and that the decision was fairly debatable, the…Complaint must be dismissed in its entirety.”
Shaia and Lennon maintained in their response to the county’s filings that the comprehensive plan is a guide, not a rule, and that the density calculation at issue had been changed after their rezoning application had been submitted to the county.
“The Board committed legal error by concluding that the Comprehensive Plan constrained its ability to approve Plaintiff’s application,” their response said. “A Comprehensive Plan has no force of law—it is just a guideline.”
They also noted that the Planning Commission had previously voted 7-0 to approve the rezoning, and that county planning staff was supportive of the project. Shaia has previously said that reducing the density to 81 units would make the project unfeasible.
O’Hagan Meyer attorneys Thomas Wolf and Joseph Rainsbury represented Shaia and Lennon in the case and are handling their appeal, which was received by the state court Sept. 10. A hearing has not been scheduled.
Reached Monday, Wolf declined to comment beyond the court filings.
Hanover County Attorney Dennis Walter is representing the board along with Deputy County Attorney Rebecca Randolph and Assistant County Attorney Leah Han.
I hope Shaia is successful since Hanover moved the goalposts on him. The area could greatly use 55+ maintenance free living, as well.
Of course, I side with Larry Shaia who has built beautiful apartments throughout Hanover County. Cambridge is outstanding. But it’s difficult to fight “city hall” because they can continue to throw lawyers at you, ad nauseum, and lawyers are expensive. Even if he wins, and he should win because he’s right, he loses anyway and we only have so much time on this Earth.
Comp Plans do not have the force of law in VA. I know this because Chesterfield has repeatedly and openly violated tenets of its Comp Plan in recent years. In addition, revising the Plan 2 months after a zoning request is filed, and not evaluating the request based on the Comp Plan in force at that time is both disingenuous and insulting. This whole process makes Hanover look like it’s administered in a very arbitrary fashion.