BY STEFANIE BOWMANN, Eastern Shore Post —
A Northampton County resident failed in his initial attempt to challenge the legality of an April 2024 zoning decision made by the local board of supervisors after a judge said he lacked standing to bring the case.
Ken Dufty, of Wardtown, appeared in Northampton County Circuit Court on Jan. 14 regarding his lawsuit against the board of supervisors for its decision to rezone three acres in the lower end of the county, allowing a small mobile home park to be replaced with about a half-dozen new houses.
Judge Lynwood Lewis presided over the proceedings and Richmond attorney Blaire O’Brien represented the Northampton Board of Supervisors.
In his opening statement, Dufty argued, in part, that the board’s decision to approve the rezoning was illegal because it served a private interest, not a public interest.
According to Virginia Code 15.2-2283, the purpose of zoning ordinances is “promoting the health, safety, and general welfare of the public.”
Although the Northampton Planning Commission had suggested that the homes to be built in Cedar Grove, south of Townsend, could serve as workforce housing, a professional consultant had noted there was no commitment in writing to construct workforce housing, Dufty said.
The consultant also noted that the project would result in “no net gain” in housing, Dufty said.
Furthermore, the project did not align with Northampton’s comprehensive plan, which promotes development in and around towns with public water and sewer service, not in rural areas.
O’Brien referred to the case of Friends of the Rappahannock v. Caroline County Board of Supervisors and argued that Dufty’s case should not proceed to a trial because he lacked legal standing.
She said that he failed to meet two requirements established by the Friends of the Rappahannock case: owning property within 2,000 feet of the area impacted by the zoning change and demonstrating “particularized harm” to his property interests.
Dufty admitted he did not live near Cedar Grove but said that did not matter because he was not making a “factual dispute” about the decision made by the board of supervisors.
Instead, he was questioning the legality of the decision and the manner in which it was made.
In questioning the manner in which Northampton supervisors decided the Cedar Grove zoning issue on April 9, 2024, Dufty quoted remarks by Supervisor John Coker:
“He can build anything he wants,” Coker said of the applicant. “Let him chop up the property into five pieces and build whatever he wants — maybe a big house, maybe four or five little houses, as long as it fits. We have no control.”
Dufty said the argument amounted to Northampton County having “no zoning.”
“Are you going to let that stand?” he asked the judge.
Dufty cited the case of Berry v. Board of Supervisors of Fairfax County, which the plaintiff won on appeal in the Supreme Court of Virginia.
In that case, Fairfax County residents alleged that their board of supervisors illegally passed a zoning ordinance by misapplying COVID-19 pandemic rules and taking action during an electronic meeting on a matter that was neither essential nor time-sensitive.
The supreme court ruled in favor of the plaintiffs, and the decision by the Fairfax County supervisors was overturned.
But O’Brien referred back to the Friends of the Rappahannock case and asserted that the two-step process to prove standing in legal matters about land-use decisions is standard.
“I simply think there’s no way around it,” she said.
After an approximately five-minute recess, Judge Lewis voiced his agreement and dismissed the lawsuit.
“Standing is fundamental,” he said.
Dufty later said he plans to appeal the decision.
