Judge rules against zoning appeal to build new homes near Ford's Colony

Staff writer

A judge ruled against two companies that sought to appeal a Board of Supervisors decision to deny a rezoning application for a housing development near Ford’s Colony Tuesday.

Plaintiffs Parke at Westport and Eagle Construction challenged the supervisors’ December 2017 decision and the county’s policy that forbids residential developments from using proffers, a restriction the county added to its ordinance in 2016.

Proffers can be used to secure guarantees to build to a certain standard or address issues related to traffic or schools caused by a development project.

Eagle Construction wanted to build 81 homes on a 45-acre parcel across from Ford’s Colony on Centerville Road. The development would have been called the Parke at Ford’s Colony and aimed at seniors.

Mike Rothermel, the plaintiffs’ attorney, charged there was no reasonable grounds why supervisors would reject the application, and the county’s proffers policy effectively means all residential development projects are dead on arrival, since they lack a key tool to provide enforceable guarantees to entice supervisors to give those project the green light.

“The only reason it was done was to stop residential development,” Rothermel said. “There’s no legitimate issue the board could have on this.”

Since there’s no way to mitigate impacts, the policy is arbitrarily discriminatory against the residential development his clients had in mind, and therefore illegal under Virginia law, Rothermel said.

Deputy County Attorney Max Hlavin, who represented James City County, disputed that.

“It’s perfectly legal and not discriminatory,” Hlavin said, noting proffers are optional and development can still take place without them.

Hlavin argued there was no reason to suggest the application denial was unreasonable, citing supervisors’ stated concerns about traffic and school enrollment, and that a policy restricting proffers is within the county’s rights — sentiments the judge ultimately agreed with at the end of the two-day hearing.

Parke at Westport, which owns the land in question, declined to comment after the judge’s ruling.

A flawed process

Rothermel said the rezoning application was flawless, and the county policy prohibiting proffers for residential development put it at an unfair disadvantage.

He noted county staff recommended approval, as did the Planning Commission. The project was almost entirely inside the Primary Service Area.

The Primary Service Area is the portion of James City County that either has or is expected to have utilities in the near future. It’s designated to accommodate residential, commercial and other development.

But without proffers, the developer couldn’t make enforceable agreements to mitigate the impacts of the development, though the developer sought to address as many concerns as possible.

“Without proffers, there’s no way to guarantee what you show is what will actually be constructed,” said Nathalie Croft, an expert witness called by Rothermel and Eagle Construction’s director of land planning.

A 135-housing-unit expansion at Williamsburg Landing, a senior living community, approved by the board the same day it considered the Ford’s Colony proposal was a talking point for both sides of the case — with Rothermel arguing it demonstrated the county would accept proffers and Hlavin arguing the approval showed the county didn’t reject residential developments out of hand.

The county put an easement on the property that required its access road to go through Williamsburg Landing itself. It was hoped doing so would deter Williamsburg Landing from selling the property to a developer, Rothermel said.

He called this easement a proffer by another name. Hlavin disputed that characterization, arguing that it was a distinct tool.

Eagle Construction could have created an age-restriction for the homes if proffers were available, which would have addressed concerns supervisors had with the proposal, Rothermel said.

The project had a negative fiscal impact of about $128,000, according to a county study. Most of that was due to projected new school-aged children who presumably aren’t a factor when older homeowners are involved.

James City Planning Director Paul Holt testified the county doesn’t have a anti-residential development policy, and after the county’s ordinance change, rezonings continued at the same rate they did before.

County bias

Rothermel also charged, based on statements and memos, the Board of Supervisors was prejudiced against residential development.

“This state statute was used as an excuse,” he said. “They changed it in a way to specifically discriminate against one group,” he added, referring to the county ordinance change.

Supervisors cited concerns about traffic and increased strain on the school system among the reasons why they decided against the application.

The project wasn’t large enough to necessitate a traffic study, and a study by the developer found few new students would live in the homes, so those concerns were invalid, Rothermel said.

At the trial, Croft disputed the validity of James City’s student count. Her team made its own calculation based on the student population living in Ford’s Colony, she said.

The county study determined the development would add 32 students to the school district, which county staff said would meet the adequate public schools facilities test. Eagle Construction’s study suggested two school-aged children would be added.

Hlavin countered the supervisors weighed many factors and the majority determined the project wasn’t in the county’s best interest.

Regardless of whether a traffic study is done, more homes does add more cars to roadways which, among other aspects of the proposal, the supervisors found unacceptable, he said.

Jack Jacobs, 757-298-6007, jojacobs@vagazette.com, @jajacobs_

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