Camp Parkway suit dealt legal blow

Published 10:38 am Monday, May 15, 2017

A judge has announced his decision in the Camp Parkway lawsuit brought against the Southampton County Board of Supervisors, sustaining some parts while overruling others. A notable instance is that board did not act “arbitrary and capricious” in rezoning property in 2016.

The plaintiff, Dr. Aurelius Brantley of Franklin, filed suit last summer against the board collectively and individually. He claimed the members acted improperly by amending the County’s comprehensive plan, which would allow manufacturing development in a residential section of that area. The petition was amended and filed in mid-October.

When the hearing took place in Suffolk this past February it was on a demurrer. That’s a legal motion that admits the truth of a plaintiff’s presented facts, but contends that the facts are either irrelevant or insufficient to justify ruling in the plaintiff’s favor.

Judge Charles Poston of the Fourth Judicial Circuit Court of Virginia explained in his letter to the representing attorneys on both sides that “when deciding a demurrer, the court ‘must consider the pleading in the light most favorable to the Plaintiff and sustain the demurer if the pleading fails to state a valid cause of action.’”

The judge noted that at the hearing, everyone concurred that the demurrer is based on four chief issues:

• One, standing of the plaintiff;

• Two, Substantive due process as alleged in the amended complaint;

• Three, procedural due process as alleged in the amended complaint; and

• Four, alleged violations of Virginia’s Freedom of Information Act.

The first requires a two-part test: That the plaintiff own property within or close by the area in question, which was satisfied, and that he present facts “which show ‘particularized harm’ to his interest.” That is, the decision would definitely harm in certain ways. Poston said the plaintiff did not do so; it’s been only speculation.

The judge stated, “With regard to the standing issue, then, the demurrer will be sustained, and the plaintiff will be granted leave to file an amended complaint within 21 days of the entry of the order.”

For the second and third points, Poston said that there no actual allegations to prove the board acted arbitrarily and capriciously. Further, because the plaintiff had attended the meeting when the board of supervisors had its public hearing and voted, then the procedural due process claims cannot be brought [to trial].

He wrote that the demurrer is sustained where the second issue is concerned and the plaintiff can file an amended complaint.

“With regard to the procedural due process claim, the demurrer is sustained and that allegation is dismissed,” Poston stated.

Finally, concerning allegations that FOIA was violated, the demurrer was also sustained, and the plaintiff has the aforementioned option.

It was noted that the plaintiff’s amended complaint didn’t have enough facts to support that the board of supervisors “consistently discussed improper topics in closed meetings,” the judge wrote, adding that he couldn’t “infer from a single alleged deviation that the board, as a matter of practice, discussed topics outside the scope of the exemption.”