Stafford County supervisors have set aside $75,000 for outside legal counsel, citing a recent surge in lawsuits that stem from a number of new ordinances.
Challenges of this type are not uncommon, but 2008 has been a particularly busy year. Local politics have taken on an increasingly partisan hue, with votes often falling into camps that can roughly be described as "pro-property rights" and "pro-controlled growth."
Even the vote to set aside the money for outside counsel was divided, 4-2, with Supervisors Paul Milde and Mark Dudenhefer voting against. Supervisor Cord Sterling was absent.
Board Chairman George Schwartz defended the board's decisions.
"We have passed a number of ordinances that are friendly to the environment and to the people who live here," he said. "Developers take it as a personal affront, and they're a litigious bunch. For two generations, they've had it their own way.
"The more lawsuits there are, the better job I'm doing."
There is a spectrum of nuance among the seven board members' positions, but the general majority of controlled-growth advocates have passed a number of ordinances that have had the consequence--intended or not--of making development more difficult.
Planning Commissioner Cecilia Kirkman, an advocate for growth control, made her case via e-mail.
"We have to remember that residential development does not pay for itself," she said. "Every by-right single-family home that gets built costs the county over $92,000 just for capital infrastructure costs. Any reduction in lot yield will save taxpayers money."
Some county officials dispute the $92,000 figure, as well as the general idea that growth is a financial burden on taxpayers. Nonetheless, it is an important notion that may be influencing the adoption of controversial ordinances.
Those decisions are drawing fire from developers, who have turned to the courts in the hope that they might regain rights they had before the ordinances were passed.
The county will likely need to hire an attorney well-versed in land-use issues to deal with the lawsuits and defend decisions the board has made.
A RAW DEAL
Stafford County Attorney Joe Howard has a full-time staff of four lawyers. For the most part, that staff handles the county's legal needs, but some cases are best handled by an expert in a certain field.
Outside counsel is currently being used on the case involving the anti-terrorist training center off Mount Olive Road known as "The Crucible." A Circuit Court ruled in favor of the property-owner. Stafford is appealing the decision.
Outside counsel also was hired to deal with purchasing the Crow's Nest property.
When supervisors set aside the $75,000 for legal fees, they alluded to a controversial drainfield ordinance that was passed in March of this year.
Failing drainfields have been an issue in certain parts of Stafford, so county officials revised regulations to require larger primary and reserve drainfields.
Those requirements could mean added costs for developers, who say the changes also constitute a down-zoning that reduces the lot density of a given parcel.
Fourteen lawsuits were filed shortly after the ordinance passed.
RIVER RUNOFF
In October, the Board of Supervisors created a Potomac River Resource Protection Overlay District. The purpose of the ordinance was to protect the water quality of the Potomac River, which the Potomac Conservancy recently rated as a "D+."
The ordinance created buffer zones around intermittent streams and on slopes of 25 percent or more. It restricts development in those areas in an effort to reduce erosion and runoff.
"Runoff from development is the fastest-growing source of pollution for the Potomac and the Chesapeake Bay," said Anne Merwin, senior director of policy for the Potomac Conservancy.
When the overlay district was proposed, a memo from the county attorney to the Board of Supervisors was provided to The Free Lance-Star. It raised questions about the legality of the ordinance. The memo advised of potential equal-protection and unlawful-takings claims.
Shortly after the supervisors adopted the ordinance, land-use attorney Clark Leming filed a lawsuit on behalf of Stafford Lakes Limited Partnership, which owns property in and around the Crow's Nest Harbour subdivision.
The suit makes six claims, including one that states the ordinance is arbitrary, capricious and unreasonable.
"They don't have the deep pockets they used to have," Supervisor Milde said of developers, "and they're still doing this. I'm not against protecting streams. But the overlay could have been crafted to be more effective and defensible."
Another lawsuit has been filed on behalf of six different property owners in the area affected by the ordinance.
THE NEXT MOVE
Lawsuits are filed frequently against the county, but most are taken care of in-house, without much fanfare.
The recent lawsuits involving land-use decisions are magnified for two reasons: Outside counsel is needed; and the tight budget climate amplifies the cost associated with hiring those lawyers. Some supervisors have questioned whether fighting developers in court is the best use of county funds.
"We are not in a position to fiscally defend ourselves," Supervisor Dudenhefer said.
On the other hand, there are supervisors who feel the developers are using intimidation tactics.
"We need to stand up and defend ourselves," Supervisor Joe Brito said.
Brito and others in his corner may have to maintain that resolve for a long time. There are more ordinances--passed and in the pipeline--that have caused a stir among developers.
Supervisors have been adjusting the Urban Services Area boundary, which could affect developments that plan on using county water and sewer.
Officials from the Silver Cos. already have voiced their concern over the Sherwood Farm property they own on State Route 3, which currently sits within the USA. When the USA boundary is set, their property may end up on the outside, and they may look to the courts for help.
Developer Alex Long has his own take on the situation.
"They're playing Russian roulette with a loaded gun," he said of the supervisors. "Eventually, a judge will put the hammer down."
Jonas Beals: 540/368-5036
Email: jbeals@freelancestar.com