It’s like Groundhog Day in court when the Crescere case is on the docket with continuance after continuance and the same motions being heard numerous times.
Last week, attorneys for the Madison County Board of Supervisors, Crescere owner Crystallis LLC and William Rother appeared in court to hear the defense’s demurrer regarding the case. This was the second such scheduling for the demurrer, which was argued but continued in June to allow Rother’s attorney Roy Shannon to enter an amended complaint after an oral motion craving oyer was granted adding numerous documents to the complaint.
It was just another continuance in a case that has long been in the court system. The case takes issue with a special use permit (SUP) granted in August 2020 to allow the creation of a rural resort or event venue on a 762 acre property off Rt. 231 in Uno. The property, formerly known as Ken-Walt Farm and renamed Crescere, is owned by Orange resident Barbara Miller via Crystallis, LLC. Miller’s SUP covers seven parcels with a total of approximately 749.3 acres and consists of a variety of buildings including a spa, welcome center, restaurant and cottages, plus glamping and camping sites. Neighboring property owners William and Christina Rother filed a complaint seeking a declaratory judgement against the supervisors, Crystallis, LLC, and Crescere Resort in early September 2020. The complaint seeks to make the SUP invalid with the Rothers alleging the approval was improper and violates both the zoning ordinance and Virginia Code. They say the use isn’t in harmony with the intent of the zoning district and would adversely affect the use of the neighboring property. They also say they will be negatively impacted and harmed by the development of the resort with their use and quiet enjoyment of their property impaired. Christina Rother has since filed a non-suit, removing herself from the case.
In June, attorney Jennifer Royer, who represents the county in the case, and Will Tanner who represents Miller and Crystallis, LLC reiterated their October demurrer questioning the validity of the complaint. Royer said the Rothers fail to state sufficient facts to demonstrate they have or will suffer damage that is different from that suffered by the public at large, that they have any immediate interest in the subject matter of the SUP or that the board has denied them any personal or property right by granting the SUP. During that hearing, Royer pointed to the actual motion approving the permit which was made by supervisor Carty Yowell. In his motion, he included special conditions submitted July 30, 2020 that would be imposed on the development, a nine-page master plan, controlling documents and that sound would cease by certain times.
“It’s convenient the special use permit was not included [in the complaint],” Royer said, stating that it includes all of the specificity which Shannon alleges isn’t’ there.
She later made an oral motion craving oyer to attach eight documents to the complaint, which Shannon argued he hadn’t yet seen. That motion was granted and Shannon was granted a continuance to submit an amended complaint with him stating his argument may change with the inclusion of the documents.
However, in court last week, Royer said Shannon’s amended complaint didn’t include the documents and wasn’t any different than the first. Shannon said he contested what was the legislative record, noting that the minutes weren’t signed or available when the case was filed. County minutes are approved at the next subsequent meeting when they are signed and placed in the record book, said Royer.
“Of course the documents are signed at a later date, that’s how it works,” she said. “This is one giant circle. In June we had a plea in bar, [Shannon] said it was inappropriate and requested a motion craving oyer, now he’s asking for a plea in bar.”
Tanner pointed out 19 contradictions in the complaint that he said would be resolved if the documents representing the record were added.
“I thought once we had the June 30 hearing, the amended complaint would come back with some of the things that happened,” he said. “One could read this and think the board of supervisors is handing out SUPs at the courthouse door. If you’re going to sue us about the SUP, sue us for what actually happened.”
Judge David Franzen agreed that the amended complaint was similar to the original complaint and makes numerous references to the SUP application and the SUP itself as well as the board’s actions. He said factual statements and conclusions cannot be assessed without the actions of the board. The motion craving oyer was again granted.
Shannon asked that the video of the public hearing regarding the SUP be added as well. That request was granted. Shannon also asked for a continuance to file another amended complaint 10 days after the documents are added.
“We don’t need to kick this down even further,” Royer said, disagreeing with another continuance. “The board is concerned the documents won’t change the complaint and we’ll be another month down the road.”
She asked that if the amended complaint didn’t contain anything from the day’s hearing, attorney fees be covered by the plaintiff.
Franzen said while procedure is important, timeliness is too and delaying isn’t advantageous to anyone.
“To the extent [this would be] delayed forever, this court won’t allow it,” he said. “We need to move along in an expeditious fashion with respect to the procedure.”
A hearing on the demurrer has been scheduled for Sept. 23.