By MEGHANN COTTER
A Stafford Circuit Court ruling will put a McLean developer's subdivision plan for Crow's Nest back into the regular review process.
An Aquia couple had filed an appeal Dec. 7, arguing K&M Properties' plan does not comply with the Chesapeake Bay Act. County officials sent the plan to the Board of Zoning Appeals for review.
That halted all discussion on the issue, which was scheduled to be heard by the Planning Commission on the same night.
Waiting for the zoning board to review the plan would have delayed the developer's efforts until at least the end of February. The Circuit Court ruling will now return the application to the Planning Commission instead.
Judge H. Harrison Braxton heard arguments from K&M, developing Crow's Nest as Stafford Lakes LLC, and the Aquia couple, Linda and Jack Fellers, on Friday. In a written decision issued yesterday, he said the zoning board has no authority on a subdivision matter.
The Planning Commission is responsible for making sure such plans meet county code, he said. And the county attorney can advise the group on the adequacy of the land owner's plan beyond that.
The Fellerses' appeal to the zoning board, Braxton said, was a way to delay the process. K&M runs the risk of having to rewrite its plans because of pending county ordinance changes.
Braxton also cited a similar zoning appeal about Crow's Nest, which is currently waiting to be heard in Circuit Court. In that case Zoning Administrator Dan Schardein ruled that it was not an appropriate matter to send to the Board of Zoning Appeals.
Schardein has said he sent the Fellerses' claim to the group because county policy has since changed, requiring all appeals to be forwarded. But Braxton said the decision was a contradiction.
"Such inconsistency does not bode well for those who are trying to deal with local governmental agencies in the labyrinth of zoning and planning law, nor does it give the Court any confidence in their position," he said.
Stafford attorney Clark Leming, who represents K&M, said the judge's decision indicates to him that the appeal should never have been allowed.
The company wants to put 688 homes on a 3,230-acre section of the environmentally sensitive peninsula, which sits between the Potomac and Accokeek creeks. Leming said his client hopes the plan makes it on the Planning Commission's Jan. 25 agenda.
"Our expectation now is the Planning Commission is going to perform its duty and approve us in the due course of business, like any other subdivision application," he said.
The Fellerses had argued that some documents related to the Chesapeake Bay Act are missing or incomplete in that application, and that some lots are too close to streams and wetlands.
Their attorney, David Bailey of Beaverdam, said yesterday that his clients had not decided whether to appeal the Circuit Court decision to the Virginia Supreme Court. He said he thinks the case has raised some important questions about the planning process, regardless.
"We are still all fumbling around in who has the authority to do what," he said. "For the moment, the judge has said it is not going to be the Board of Zoning Appeals, it is going to be the Planning Commission."
County Attorney Joe Howard said he is also disappointed with the judge's decision. And he will consult with Stafford supervisors Tuesday about whether they want to take any further action.
To reach MEGHANN COTTER:
Email: mcotter@freelancestar.com