After a months-long battle with neighbors and preservation interests, a Middleburg-area developer is a step closer to construction of a 38-lot subdivision.
The Middleburg Planning Commission on Monday night voted 5-1 to conditionally approve the Banbury Cross Reserve preliminary subdivision on a portion of a 571-acre property about a mile east of town. That would include28 cluster lots ranging from 2-4 acres and 10 rural economy lots of 25-70 acres, along with close to 70 acres of preserved open space.Ed Fleischman was the only commissioner to vote against approval.
The vote followed two weeks of meetings between commissioners and the applicant—development company Middleburg Land 1, which is managed by Andrew Hertneky. Planning Commission Chairman Terence Cooke said the commission has been “very appreciative” of Hertneky’s “extraordinary responsiveness.”
“I believe the applicant has … been very responsive and forthcoming in all respects,” he said. “It is abundantly clear to me that the applicant has met all the county and town requirements for its preliminary subdivision plat.”
Before the town officially approves Hertneky’s application, Hertneky will be required to conform with regulations related to fire hydrants and obtain approval from the county Fire Marshal’s Office; comply with requirements outlined in a June 3 memorandum by Loudoun County Archaeologist Steve Thompson; and identify certain offsite easements for ingress and egress.
The subdivision is located within the county’s Agricultural Rural 2 Zoning District and partially within the town’s extraterritorial subdivision control area, meaning county and town planners must approve the application. Under Virginia law, if a preliminary subdivision plat application complies with town and county regulations, a town’s Planning Commission is obligated to approve it, as a ministerial action.
Deputy Town Manager Will Moore on three occasions—during a Sept. 23 meeting, a July 27 public hearing and on Monday night—recommended the commission vote to approve Hertneky’s application.
But the commission voted to deny the project on Sept. 23 last year and voted to table the vote two weeks ago after a three-hour public hearing during which 40 area residents addressed the project, most of whom spoke in opposition to it. They argued that the development could deplete the area’s water supply, diminish its rural character, take away agricultural land forever, infringe on a suspected slave burial ground, undermine properties’ eligibility for historic designation and adversely affect road safety.
At that hearing, Nick Albu, a land use attorney representing Middleburg Land 1, told the Planning Commission that if it voted to deny the application, the developer would sue the town.
Since then, Hertneky and commissioners talked through project details. Hertneky has told the town that he would be open to limiting more than 30 uses on the property that are already allowed in the county’s AR2 Zoning District. He said he could achieve that by imposing restrictive covenants on the land.
Hertneky has also resolved to help the town if it ever experiences a water-related emergency—whether caused by the development or not—by allowing the town to drill a well on the Banbury Cross property and that his consultants have found that the town could take 10,000 gallons of water daily if needed.
He also said he would help any neighbors who show him that their water supplies have been adversely affected by the subdivision.
“We want to be good neighbors,” he said. “We certainly would do all we could do to help them.”
Still, Fleischman on Monday night argued Hertneky could not prove that the subdivision would have no adverse effects on the town’s water supply and cautioned the commission not to move ahead too quickly with the vote. His motion to deny the application was seconded by Commissioner Don Woodruff but received no further support.
Cooke said that there was no legitimate basis to deny approval of the application and that speculation as to what could happen years down the road did not provide legitimate grounds to vote to deny the application.
“This application has to be considered on its own merits,” he said.
Although commissioners discussed the matter in a half-hour closed session prior to the vote, they did not publicly discuss whether a recent lawsuit filed against the Banbury Cross Reserve property owner, Thomas Nelson Gunnell, would factor into the vote.
In that lawsuit, Jane Page Gunnell Thompson is pushing for Gunnell, her brother, to be removed as the sole trustee of the Gunnell Family Dynasty Trust, which could restrict Gunnell’s access to the Banbury Cross property, since the property is included as an asset in the trust.
Thompson also alleges that Gunnell might not even be the real owner of the property, alleging he has “wrongfully transferred, titled or otherwise alienated [assets] from the Dynasty Trust.” Thompson charges that Gunnell has retitled properties into newly formed corporations multiple times, most recently into Middleburg Land 1 and Middleburg Land 2.