Judge rules for city in Karig lawsuit

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The wooded area at 3832 and 3834 Seminary Road contains a forested ravine and wetland. Environmentalists and city officials have debated whether an intermittent stream also exists at the site. (Photo Credit: Missy Schrott)
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By Cody Mello-Klein | cmelloklein@alextimes.com

Judge Lisa Kemler brought an end to the Karig Estates debate at a hearing on Wednesday morning when she ruled in favor of the City of Alexandria.

The Karig Estates development involves the construction of four single-family homes at 3832 and 3834 Seminary Road. The project has been mired in controversy since November 2017, when the planning commission approved changes to the proposed site plan. City council subsequently passed the measure by a 6-1 vote.

Residents filed a lawsuit in spring 2018 alleging that the planning commission and city council did not have sufficient evidence regarding the environmental effects of the project.

A major question of the lawsuit was whether an intermittent stream – a channel that contains flowing water for only part of the year – exists on the property. If it did, any project in the vicinity would need a 50-foot buffer on either side of the stream, according to section 13-109 of the city’s zoning ordinance. Residents have long alleged that city staff ignored evidence of the stream because it would have caused major problems for the project.

The lawsuit came to a head at Wednesday’s hearing, when the city and petitioners’ attorneys asked Kemler to determine whether the planning commission and city council had had enough information to approve the Karig Estates project last year.

At the hearing, Mark Moorstein, the attorney for the petitioners, cited emails be- tween Rod Simmons, a natural resource manager and plant ecologist with the Department of Recreation, Parks & Cultural Activities, and Tony Fleming, a professional geologist who had been consulted during the planning stages of the Karig Estates project. Moorstein cited specific cases where both Simmons and Fleming reported that there was an intermittent stream. He said his clients believed this evidence was left out of the report submitted to city council by city staff and that the record was incomplete.

Amy Miller, the attorney for the city and city council, questioned the certifications of Simmons and Fleming in the North Carolina Method, a specific set of criteria that determines whether a stream is intermittent or perennial.

“For the record, Mr. Fleming and Mr. Simmons are not certified in the North Carolina Method nor do they purport to be in their CVs and resumes,” Miller said.

The crux of the hearing was whether the approval of the site plan was a legislative or ministerial act. The former requires changing or creating new legislation, while the latter is defined by following laws that are already in place. In the case of a legislative act, the case would be largely in the domain of the legislature and the court would have very little ability to challenge or overturn its decision, Moorstein said.

Moorstein argued that this case was centered around a ministerial act.

“The question is, did they apply the law?” Moorstein said in an interview after the hearing. “We said they didn’t because they didn’t apply the law in regards to an intermittent stream. Evidence was there and as a result, the court had an obligation to review it.”

At the hearing, Kemler said the case was based on legislative act. She said the court was limited in what it could do.

“It is not for the court to second guess the legislative body nor is the court’s role on appeal to reweigh the evidence or make its own determinations as to the credibility of witnesses,” Kemler said in her closing comments.

Kemler said that the record was sufficient enough for the planning commission and city council to make their decisions.

“The fact that the petitioners pointed to evidence supporting their position does not mean that there’s a lack of substantial evidence,” Kemler said. “It just means that there is conflicting evidence or conflicting opinions.” Kemler sustained the city’s demurrer and, with the agreement of both Miller and Moorstein, deemed it unnecessary to proceed with summary judgement.

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