The owner of the Meadowbrook property and the Town of Leesburg may again meet in court.
A month after the Town Council’s vote to deny a rezoning on the Meadowbrook property, Traditional Land LLC, which owns the land, has filed suit against the town. There is a 30-day deadline to file a lawsuit challenging the rezoning denial. The suit was filed in Loudoun County Circuit Court on July 11. The council denied the rezoning June 12.
“We’re taking this route principally to protect Traditional Land. The idea is you’ve got to protect your options,” attorney John Foote of Walsh Colucci, representing Traditional Land, said. “We don’t believe this was an entirely fair and accurate determination by the council.”
The application by Traditional Land, and with developer Van Metre behind it, sought to rezone around 24 acres of the total 228-acre Meadowbrook property off Rt. 15 and Evergreen Mill Road to allow for the development of a roughly 200,000-square-foot commercial center. Six special exception applications were also filed in association with the commercial center rezoning and, if approved, would have located a service station and three drive-through restaurants, among other inline retail and office uses, on the property.
The rezoning was denied by a 4-1-2 vote. No vote was taken on the special exception applications since the rezoning was denied.
Part of the complaint against the town centers on how the vote to deny the rezoning came to be. The suit notes that Councilman Ron Campbell—the lone council member to vote against the motion to deny the rezoning—had requested an amendment to the main motion to deny to allow the applicant to return with a new application in six months, rather than the required 12-month waiting period. The main motion maker, Councilman Tom Dunn, denied that amendment, but did ask the applicant if they wanted to withdraw the application instead of waiting for a vote.
Councilman Marty Martinez then asked if he made a motion to defer, if that vote could be taken prior to a motion to deny. He was advised by Town Attorney Barbara Notar that he would need to wait until the original motion for denial was off the table.
However, the lawsuit states that that was not correct procedure and points to Robert’s Rules of Order, which the council uses to govern how its meetings are run.
“This was an error, for under Robert’s Rules a motion to defer action on a pending motion takes precedence over that main motion, and should have been declared in order, not only because Robert’s Rules say so, but if the motion to deny succeeds, the motion to defer is pointless,” the suit states.
The filing also notes that Mayor Kelly Burk should have determined if there was a second to Campbell’s motion to allow a six-month turnaround for filing a new application. It says Robert’s Rules does not recognize a “friendly” amendment. Not allowing consideration of a shorter period to file a new application, the lawsuit states, will require the applicant to again pay the substantial fees associated with a rezoning and special exception applications and to renew its engineering studies and other legal expenses.
“The Council’s failure to follow its adopted Rules of Procedure has had a substantive adverse effect on the Application in violation of Virginia law…and constitutes a deprivation of procedural due process under the Virginia and United States Constitution,” the filing states.
The lawsuit also contends that the council’s basis for denying the rezoning was based on “impermissible grounds”, with council members supporting the motion stating an overabundance of commercial development in Leesburg that the town is unable to sustain; the introduction of commercial use into an area in which it had not previously existed; and citizen opposition to the project. Instead, the suit states, consideration of the application should have been based on its consistency with the Town Plan, traffic mitigation, and compatibility with surrounding neighborhood uses, as examples. It calls the decision arbitrary, capricious, unreasonable, and in violation of state law. The denial of the rezoning also precludes the applicant from taking an advantage of a credit towards off-site transportation improvements it had been afforded in a previous, unrelated settlement, the suit states.
Should the lawsuit go forward—it has not yet been served on the town so litigation will not proceed until it is—it would not be the first time the two parties have found themselves in court. More than a decade ago, the initial Meadowbrook application sought approval for more than 1,200 housing units—including single-family attached, detached, and multi-family units—as well as 165,000 square feet of retail space and 110,000 square feet of office space in a submission to rezone the property from R-1 (residential) to PRC (planned residential community). The Planning Commission recommended denial, and the applicant withdrew the request. Months later, the Town Council voted to change the Town Plan to restrict development to the by-right development density of one house per acre.
A subsequent subdivision submission was made by Centex Homes in January 2006. Town staff members informed the applicant that they deemed the application incomplete when submitted and Centex later took the town to court to challenge the town’s assertion. A July 2006 Circuit Court ruling determined that the application was acceptable for review and instructed the town to proceed. One month after the town accepted the submission, the planning staff recommended denial of the application to the Planning Commission. Meanwhile, the town’s appeal to the state Supreme Court was successful in overturning the Circuit Court ruling. The property owner submitted several development plans—all of which were recommended denial by town staff—before settling on a proposed 184-lot, by-right subdivision in June 2008. That proposal did not include for right-of-way for the planned extension of Battlefield Parkway. After the Planning Commission denied the subdivision application, the developer filed a lawsuit against the town, charging it was not required to provide the road right-of-way under state law. The lawsuit was to be heard in court in early 2009, but was shelved for the two sides to find a compromise.
The compromise turned out to be the creation of a new zoning designation, the Traditional Design Option. The parameters of that zoning designation, which encourages residential development with a mix of housing types, an interconnected street system and active and passive recreation space, also requires the developer to provide rights of way and easements for town roads. Only three properties in town, including Meadowbrook, meet the criteria to be developed under a TDO. The property owner withdrew the lawsuit following approval of the TDO. In 2016, the Town Council approved an agreement for the right-of-way and easements needed for the Evergreen Mill Road alongside the community. That is part of the settlement agreement resulting from the 2009 action, and cleared the way for the residential portion of the development to begin construction. Four hundred homes, some of which are already occupied, are planned for a portion of the Meadowbrook property, and the commercial component was sought to be an asset to the surrounding community.
Notar declined comment on the lawsuit.