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August 9, 2005 Westmoreland Halts Zoning Case

By FRANK DELANO

Free Lance-Star

A controversial housing development proposed next door to James Monroe's Westmoreland County birthplace sank in a legal swamp yesterday, and may remain there for months.

Citing opinions by the Virginia attorney general and the county attorney, Westmoreland supervisors concluded the county's current R-3 zoning process is illegal.

They deferred developers Douglas and Larry Cooper's rezoning request until the board enacts a new zoning ordinance months from now.

The Cooper brothers have sought since April to rezone their 47 acres of low, forested land to build 109 houses. Their tract sits on both sides of State Route 205 at Monroe Hall, adjacent to the 76-acre, county-owned tract where the nation's fifth president was born in 1758.

The Coopers sought R-3 zoning for their agricultural tract. Westmoreland's existing R-3 zoning required the Coopers first to obtain rezoning for the property, then submit to a second round of county approvals for such details as the project's lots, roads and restrictive covenants.

In a 2003 opinion, however, the state's attorney general issued the opinion that Warren County could not require a property owner with valid zoning to undergo a second county review of project details before receiving a final zoning permit.

"The General Assembly clearly intends that a locality require a landowner to run the rezoning legislative gauntlet only once to obtain a requested rezoning of his property," the attorney general wrote.

At yesterday's public hearing on the Cooper rezoning, County Attorney Thomas O. Bondurant Jr. said Westmoreland's existing requirement for R-3 zoning approval, followed by special-exception permit approvals, amounted to "illegal, two-prong zoning."

"If the supervisors approve the rezoning, they must stipulate all the elements of it that would have been addressed in the special-exception process. These elements cannot be addressed in a separate proceeding," Bondurant said.

"I'm at a loss now," said Fredericksburg lawyer Russell H. Roberts, who represents the Coopers. "R-3 doesn't allow anything without special exceptions."

Supervisors Chairman Robert J. Wittman said the county's new zoning ordinance would feature new residential classifications and "much clearer" processes for rezoning.

A citizen panel may finish its review of the proposed ordinance in September. It must then be approved by the county Planning Commission. Wittman said the supervisors may adopt the new ordinance around the end of the year.

"Every delay adds considerable expense" to his clients' development plans, Roberts responded. He indicated the Coopers may try to bypass the R-3 delay by seeking an R-1 or R-2 rezoning for the property.

Later, the supervisors directed the county Zoning Department to stop taking R-3 applications, and directed Bondurant to prepare an advertisement to repeal the classification.

In other business yesterday, the Board of Supervisors again deferred action on a plan to subdivide a 128-acre farm on Nomini Creek.

Last month, the supervisors asked Leesburg developer Donald W. Devine Jr. to reconsider the project's 61-lot density. Yesterday, Devine proposed 56 lots.

The supervisors again criticized the project's density, as well as the vagueness of Devine's plans to landscape the property and reduce the development's impacts on traffic and water quality.

The proposal will return to the supervisors' table in October.