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A judge refused yesterday to block a developer's plan to build homes on a part of the Brandy Station battlefield.
Circuit Judge John Cullen upheld a Culpeper County Board of Zoning Appeals ruling that it didn't have the authority to overturn the county's 1989 revised subdivision ordinance.
The Brandy Station Foundation had appealed first to the BZA and then to the court to prevent Golden Oaks Construction Co. from building houses on the 18.9-acre parcel, which was part of the famous Civil War cavalry clash. The foundation had claimed the Board of Supervisors illegally rezoned the property.
"The BZA cannot rule on the validity of a zoning ordinance," Cullen said. "The BZA cannot rule on how the Board of Supervisors zoned this property."
Cullen said the Brandy Station Foundation may not have even been in existence when the parcel was rezoned R-1 in 1989, and noted that the preservation group did not become an adjoining landowner until 1998.
"It does not appear that the foundation had any vested rights," the judge said.
In its August ruling, the BZA said it had no jurisdiction to act, because the 30-day rezoning appeal deadline had expired in 1989. It also said the foundation, acting as a third party, had no right to appeal.
The BZA added that even if these two conditions had been met, the county zoning administrator acted properly in approving a subdivision for Golden Oaks and owner Clifton Shull.
Ed Gentry, representing the Brandy Station Foundation, argued that the Board of Supervisors erred in rezoning the property because of its historical significance.
"There could be no more grievous violation [of the Virginia Constitution] than the building of houses on some of the most historically significant land in Culpeper," he told the court.
Golden Oaks attorney John Foote argued that his client had no part in the 1989 rezoning, having purchased the land in April of last year.
"They got the property already zoned," he said. "They came into this with the right to build."
He further argued that the BZA acted properly by ruling that, under state law, it had no authority in this case.
"All avenues to get to the rezoning of this land have been cut off by the General Assembly," Foote said.
Cullen agreed, saying the foundation "has not sustained its burden of proof that the BZA has erred in making its ruling."
Brandy Station Foundation President Bob Luddy said his group would not appeal Cullen's decision, but planned to file a new lawsuit against the Board of Supervisors--this time raising constitutional issues.
He also said negotiations would continue--if Shull is willing--for the foundation to purchase the parcel in question. He said the foundation had offered the landowner a 66 percent profit.
"We are still trying to raise the money to buy him out," Luddy said.
Shull paid $450,000 for the land after the previous owner, Wayne Stillwell, said the foundation had shown little interest in it. Shull later agreed to sell it to the foundation for approximately $750,000, but the foundation could not raise the money.
In January, after the foundation was unable to buy the land, Shull was granted building permits for two homes on the property. He would not say yesterday whether he would now begin building or whether selling the land to the foundation is still a possibility.
To reach DONNIE JOHNSTON: DJohn40330@aol.com