New land-use ordinances have inspired a lawsuit binge by landowners and developers in Stafford County.
In 2006 and 2007, there were a total of 10 land-use-related lawsuits filed against Stafford. In 2008, there were 43.
Depending on who's talking, the lawsuits could be a sign of progress or the beginning of a legal hangover from which Stafford might suffer for years to come.
It is difficult to look at the legal situation without peering through a political prism. Most officials explained the sharp uptick in litigation as a result of party politics.
The increase in the number of suits coincides with the change in the Board of Supervisors in 2008, when Republicans lost their majority.
Democrats on the board, who sometimes gain the support of Independent Joe Brito, have pursued legislation designed to right what they see as the environmental and economic wrongs of the past. To that end, their target is usually residential growth resulting in sprawl, and their actions have sparked familiar debates about the costs of development, both economic and environmental.
"These lawsuits against the county are an indication of the change from the old power base to a new view of land preservation for Stafford's citizens," board Chairman George Schwartz said.
The old power base, in Schwartz's opinion, favored the development industry.
"The lawsuits were inevitable," he added. "They [developers] had their way for decades."
CHOOSING SIDES
In simple terms, the line is drawn between developers and growth-control advocates.
In the real world, it's not that simple.
Thirty-one of the lawsuits are the result of three ordinances--on drain-field requirements, establishing the Potomac River Resource Overlay District and setting a minimum buildable area for lots--and a resolution shrinking the boundary of the Urban Services Area, where public water and sewer are available.
While the measures don't address sprawl directly, they all have the effect of lowering the density of residential development, particularly in rural areas. Only two of the ordinances passed 4-3 along party lines.
There are actually three separate drain-field ordinances. Two passed 6-1 and one passed 7-0. The USA boundary was altered by a 6-1 vote.
Supervisor Paul Milde, a Republican who was the lone opposing vote in the 6-1 drain-field decisions, admitted that differences among board members aren't as stark as some votes suggest. He believes there may be a common philosophy among elected officials, but the execution is misguided.
"I want to control growth. I want to redirect growth," Milde said. "The question is, how do you do that? Other counties have done it without provoking this many lawsuits."
COSTS OF CONFRONTATION
The lawsuits have put additional stress on County Attorney Joe Howard and his staff. In a good economic climate, outside counsel can be hired to handle extra work, but Howard is trying to tackle a record number of lawsuits in the midst of budget cuts. He and his four attorneys are handling most of the 43 cases in-house.
"It is unusual for a county in this area to have this much litigation," Howard said. "We're busy--that's an understatement. We're actively responding to all of these cases and devoting a lot of resources to them."
A number of the lawsuits have been consolidated by a judge, because of their similar nature. Drain-field lawsuits, for instance, were merged from 18 to six. Three of the 43 suits already have been resolved, but cases typically linger for a year or more before a resolution is reached.
Business is brisk on the other side of the suits, where go-to land-use lawyer Clark Leming represents the plaintiffs in a majority of the cases. He said that he filed "maybe six or seven" land-use lawsuits in the 20 years prior to 2008.
"When power shifted on the board," Leming said, "an effort was made to push through legislation. There was a troubling sense of urgency, of perhaps trying to do too much too quickly. Errors were made. If you do careful work and think through ordinances, it goes more smoothly."
Republican Supervisor Cord Sterling also believes the lawsuits are a result of impulsive decision-making, but added that those decisions have an impact beyond the development industry. Developers, he said, have the money to defend themselves. Individual landowners may not.
"Some of the ordinances get into the area of perceived confiscation of property rights," Sterling said. "It costs money to address the lawsuits, and it creates an adversarial relationship with the community."
PERSISTENCE OR PAIN?
It remains to be seen whether these lawsuits are a symptom of rushed decisions or a step toward better growth management.
In the short run, the challenged ordinances have become a point of contention among board members while making more work for the county attorney's office. The relationship between the Planning Commission and the board also has suffered.
"The majority on the board is pursuing a radical agenda and ignoring the advice of our attorneys," Milde said.
He has leveled the same accusation at the Planning Commission, and even managed to pass a resolution barring the commission from advertising new ordinances without the board's permission. That resolution was later repealed.
The Planning Commission has been admittedly active in pursuing ordinances that might affect development. In its the view of its members, these ordinances will benefit residents in the long run.
After the shift on the board, "We started looking at ordinances to protect the environment," Planning Commissioner Arch Di Peppe said. "If I get to make a choice between costing developers money and providing clean water for our citizens, I'll choose our citizens."
Di Peppe sees the lawsuit situation as a delaying tactic--developers litigate in the hope that they can muddle through the legal system until a more favorable board is elected. Di Peppe insists that fighting the lawsuits is a worthwhile cost of changing a system that has favored developers for too long.
"When the system is set up to advance the interests of special interests, it is difficult to change the culture," he said. "Do you want Dracula to run the blood bank? In this case, Dracula has a lot of money."
It might come down to what scares voters the most. November's election, in which four supervisor seats are up for grabs, will be a referendum on the policies of the current board. Come November, residents might be asking themselves: Was it worth it?
Jonas Beals: 540/368-5036
Email: jbeals@freelancestar.com