A Stafford judge delayed ruling yesterday on whether K&M Properties' subdivision plan for Crow's Nest will be reviewed by the Stafford Board of Zoning Appeals before going to the Planning Commission.
Aquia residents Linda and Jack Fellers have asked the zoning board to determine whether the plan complies with all Chesapeake Bay Act requirements.
But K&M, developing Crow's Nest as Stafford Lakes LLC, contends that the couple has no right to appeal the matter to the zoning board.
Circuit Court Judge H. Harrison Braxton Jr. heard arguments yesterday. He said he will issue a written decision after he has reviewed the case material.
K&M wants to put 688 homes on a 3,230-acre section of the environmentally sensitive peninsula, which sits between the Potomac and Accokeek creeks. The proposal was originally scheduled to go before the Planning Commission Dec. 7. But the Fellerses' appeal, filed the same day, stopped all discussion.
The couple's attorney, David Bailey of Beaverdam, told the judge his clients are appealing Planning Director Jeff Harvey's decision that the plan meets all county code requirements. The Fellerses say some documents related to the Chesapeake Bay rules--a part of the larger zoning and subdivision ordinances--are missing or incomplete, and that some lots are too close to streams and wetlands.
Bailey argued that the matter belongs before the Board of Zoning Appeals, rather than the Planning Commission, because the Fellerses are questioning an administrative decision regarding the zoning ordinance.
If the Circuit Court rules in the Fellerses' favor, the zoning board will not review the subdivision plan until Feb. 28.
One of K&M's attorneys, Arthur Schmalz of Hunton & Williams in McLean, told the judge that the Fellerses' claim was a delay tactic.
"It is simply to slow down and stop the development efforts of our client, and that's a misuse of the process," he said. "It is an invasion of the Planning Commission's prerogative and responsibility to review subdivision plans."
K&M has already spent about a year getting its plans ready. And the company may have to rewrite its plans, because of pending county ordinance changes, if a hearing before the Planning Commission is delayed much longer.
But County Attorney Joe Howard said, "That is just a part of life."
He told Braxton that there was no reason to rush the preliminary subdivision plan to the Planning Commission.
Controversy has swirled around the attempted development of Crow's Nest for more than two years.
Preservationists want to turn the property, which is home to some rare plant and animal species, into a nature preserve. And several groups, including federal, state and local agencies, have been trying to buy the tract or make other arrangements with the developer.
Clark Leming, a Stafford attorney who also represents K&M, has said the developer is moving forward with its project because it wants to cash in on its long-term investment, and no one has made a better offer. Securing approval for the subdivision application, he said, will be an essential part of deciding the future of the property.
Yesterday wasn't K&M's first court proceeding regarding Crow's Nest.
The company is also in the middle of an appeal to the Virginia Supreme Court on another matter. The company wants the court to uphold the peninsula's 1971 residential zoning designation, which would allow more homes per lot than the current rules.
Three justices last week declined to hear the appeal, but now the full panel will be asked to reconsider.
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com