Karig Estates lawsuit decision nears

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(Photo Credit: Missy Schrott)
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By Missy Schrott | [email protected]

Nearly a year after a group of residents filed a lawsuit against the city over the Karig Estates development, emails they obtained under the Freedom of Information Act reveal that city staff may have dodged environmental restrictions that would have stunted the project.

The Karig Estates development, which involves building four single-family homes on a multi-acre plot at 3832 and 3834 Seminary Road, has been entangled in controversy since at least Nov. 9, 2017, when the planning commission approved changes to the project’s development site plan.

Two months later, on Jan. 20, 2018, city council denied six resident appeals of the planning commission’s decision. By March 19, 2018, four residents had filed a lawsuit in Alexandria Circuit Court against city council. John Scruggs, Nancy Scruggs, Loren Needles and Janice Lachance filed the lawsuit both as individuals and as representatives of the Alexandria Coalition for Responsible Stewardship.

The case is scheduled to go before Judge Lisa Kemler on Feb. 6. Because Kemler will consider a motion for summary judgement, she will most likely make a final decision in favor of either the plaintiffs or the defendant, according to Mark Moorstein, the attorney representing the plaintiffs.

The basis of the petitioners’ argument is that the planning commission and city council did not have adequate evidence about the environmental implications of the Karig Estates development when they considered it in November 2017 and January 2018, Moorstein said.

Alexandria City Manager Mark Jinks, City Attorney Joanna Anderson and Director of Communications Craig Fifer all declined requests to be interviewed by the Alexandria Times about the project. Anderson said in a statement: “The process for the approval of site plans, including all required environmental regulations, is set forth in the Alexandria Zoning Ordinance. The City’s position regarding this case is laid out in the pleadings submitted to the Court. Given that this case is in active litigation it is best for the City not to comment on the case outside of the Court proceedings.”

The project’s opponents have long expressed concerns related to the geography of the site. They have repeatedly alleged that building four houses at that specific location would harm a forested ravine and wetland. In addition, they’ve claimed that the geological features on the site would cause structural problems for the foundations of the new houses.

A key piece of the lawsuit – and a topic heavily discussed at last year’s city council public hearing – is the question of whether an intermittent stream exists on the property. An intermittent stream is a well-defined channel that contains water for only part of the year, according to the Virginia Department of Environmental Quality.

If an intermittent stream exists on the site, the stream would be considered a resource protection area and would require a 50-foot buffer for any building project, according to section 13-109 of the city zoning ordinance. Failure to follow the protection guidelines for an RPA would be a violation of the Chesapeake Bay Preservation Act, according to VDEQ.

Jeremy Flachs, an environmentalist and attorney assisting with the case, said protecting the alleged intermittent stream would cause major setbacks for the Karig Estates project.

“Had the city agreed that the intermittent stream was an intermittent stream, then they would’ve had to give it protection, which would’ve knocked down at least one, if not two, homes. There just wouldn’t have been room,” Flachs said.

At the council hearing, William Skrabak, the city’s deputy director of infrastructure and environmental quality, repeatedly told council there was not an intermittent stream on the property.

“There’s specific criteria to define what is a perennial stream and what’s an intermittent stream,” Skrabak said at the hearing. “… There’s several ways to do that. The city applied both the North Carolina method and the Fairfax County method when we mapped all the water bodies in the city. This parcel [at 3832 and 3834 Seminary Road] was not identified when we did that process in 2004. And that was reaffirmed by staff that is qualified earlier this year.”

Flachs, the plaintiffs of the lawsuit and other opponents of the project have questioned the criteria city staff used in the planning stages of Karig Estates to “reaffirm” whether there was an intermittent stream on the site. They’ve also questioned the evidence city staff chose to present to the planning commission and council.

Moorstein said his clients believe that the planning commission and city council did not obey their legal obligation to make a decision based on adequate evidence. They believe the main pieces of evidence that had been missing were the testimonies of two environmental experts who had repeatedly told staff there was an intermittent stream on the property, according to emails obtained through the FOIA request.

The experts are Rod Simmons, a natural resource manager and plant ecologist with the city’s Department of Recreation, Parks & Cultural Activities, and Tony Fleming, a licensed professional geologist from Indiana who was hired by the city to work on the “Geologic Atlas of the City of Alexandria, Virginia and Vicinity” between 2006 and 2016 and who was consulted more recently during the planning stages of the Karig Estates development.

Flachs submitted the FOIA request for the emails in which Simmons and Fleming say there is an intermittent stream on the property. Exchanges between the two men, Stormwater Management Division Chief Jesse Maines and other city staffers document repeated assertions that an intermittent stream exists on the site. One of the first recorded claims came from Simmons on Dec. 15, 2016.

“The majority of the forested ravine of the 3832 & 3834 Seminary Road site forms an intermittent stream, in addition to the presence of the spring and seepage fan,” Simmons wrote.

Following Simmons’ email, Maines repeated the assertion to several staff members and leaders from the departments of Planning & Zoning and Transportation & Environmental Services.

“Based on the information I have discussed with Rod and reviewing City GIS data, it appears there is a spring and connected intermittent stream onsite to be designated as a Resource Protection Area (RPA),” Maines wrote on Dec. 19, 2016. “… The feature must be meet the water quality requirements per Section 13-109(11), which includes the establishment of a 50foot wide buffer. The extent of this feature must be delineated and provided in the development plan set in accordance with Section 13111 and included in the environmental site assessment of the plan set per Section 13-112.”

In early 2017, Maines contacted Fleming, who reaffirmed the existence of an intermittent stream in an email.

“I have something close to a photographic memory of this site, precisely because it is one of only a small number of relatively undisturbed headwaters ravines in the city,” Fleming wrote on Jan. 5, 2017. “There was a rather noticeable seepage face in this ravine when I last visited it (Nov 2014). These observations are documented in the entry for site 300 in the ‘Alexandria Exposures’ spreadsheet, link listed under the ‘data’ heading on the Geologic Atlas of Alexandria home page. … These headwaters ravines and springs are the textbook illustration of the term ‘intermittent.’”

In response to these claims, site developer Mike Ibrahim hired an expert to examine the property, his attorney, Mary Catherine Gibbs, wrote on Jan. 20, 2017.

“The Applicant’s expert has examined the property both with the City officials as well as with a representative of the U.S. Army Corps of Engineers. There is no intermittent stream or any other type of stream feature on the property,” Gibbs wrote.

The following January, city council was told there was no intermittent stream on the site based on evidence from the applicant’s expert, city officials and a representative of the U.S. Army Corps of Engineers. Despite Simmons’ and Flemings’ contradictory opinions, neither was asked to provide his expertise at the planning commission or city council public hearings, according to Moorstein. It is the absence of these testimonies that forms the basis of the lawsuit, he said.

“Our argument is, and what we’re asking the court to do, is to recognize that the record is deficient and needs to be sent back to planning commission to gather all of the relevant evidence, including the testimony of Tony Fleming and Rod Simmons and some of the other people. They had that evidence but were refused a review by either the planning commission or city council. That’s the nub of the entire argument,” Moorstein said.

The plaintiffs have hired Fleming as an expert witness, Moorstein said. In his affidavit, Fleming states that in March 2017, he prepared an assessment titled “A Review of the Geologic Conditions at the ‘Stuart’s Walk’ Site” at the request of concerned neighbors that summarizes the geology and water resources observed at the site, as well as geologic hazards including flooding and landslides that could expected from development. He said he submitted the document to city officials.

While city staff declined to answer questions about the lawsuit, affidavits in the case documents imply they did not find Simmons’ and Flemings’ testimonies to be relevant evidence.

According to Skrabak’s affidavit: “Neither Rod Simmons nor Tony Fleming have any responsibility for the city’s enforcement of the Chesapeake Bay Ordinance or any other environmental regulation. … Neither Mr. Simmons nor Mr. Fleming have any responsibility regarding Resource Protection Areas in the city.”

Director of P&Z Karl Moritz states in his affidavit that council had heard from the two experts in the form of written testimonies.

“No written or verbal statements of Rod Simmons and Tony Fleming were requested or necessary for the determination of whether the DSP for Karig Estates should be approved or denied; however, personal written statements from Mr. Simmons and Mr. Fleming were included in the record and were accepted by the City Council for consideration,” according to Moritz’ affidavit.

Moorstein said the judge will consider both sides’ arguments at the February hearing and will most likely determine at that time whether the evidence provided to the planning commission and city council had been sufficient.

“We’re asking the circuit court to send it back to the city council or the planning commission to make a full determination,” Moorstein said. “If they do that, I think my clients would be very happy with that.”

The hearing is Feb. 6 at 10 a.m. on the fourth floor of the Alexandria Courthouse at 520 King St. and is open to the public.

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