The three parties named in a lawsuit claiming that the stormwater management system for the Stonefield shopping center was unlawfully approved have filed motions in Albemarle County Circuit Court asking for the suit to be dismissed.
In March, the owners of Seminole Square shopping center and the Pepsi Cola Bottling Co. sued the county, the city of Charlottesville and developer Edens for failing to abide by Virginia’s stormwater regulations.
Great Eastern Management Co. and Pepsi’s suit claims that Edens “knowingly constructed a stormwater system that collects and diverts millions of gallons of stormwater” into a drainage basin across city limits between the U.S. Post Office and the Seminole Square shopping center.”
Their argument is that the system would lead to flooding onto private property in the event of a massive storm, and that would constitute trespassing.
The motion to dismiss from Edens’ attorney disputes that notion.
“The complaint is premised on a misguided understanding of the common law rules regarding riparian rights and water drainage,” wrote Jason Hicks, attorney for Edens. “The water that plaintiffs complain about is located within a natural stream and tributary to Meadow Creek which begins off-site and to the west of [Edens] property.”
Hicks also points out that such flooding is hypothetical.
“The plaintiffs refer to engineering calculations involving a 100-year storm event, as if [Edens] has some duty under the common law to prevent a stream that passes through its property and onto neighboring property from flooding in a 100-year storm event.”
Hicks points out that most of the Great Eastern and Pepsi’s claims center around a belief that the county should not have approved the center’s stormwater management system, and that the city should not have issued a land disturbance permit.
“[However], these approvals and permits demonstrate that [Edens] has complied with all requirements under Virginia law and that downstream properties and receiving waterways are protected from flooding.”
The city and county also have asked for the lawsuit to be dismissed. Both point out that the alleged violations have not happened because no flooding has occurred.
“Count IV of the complaint … does not allege that the county took or damaged the plaintiff’s property for a public use,” wrote county attorney Larry Davis.
Davis also makes the argument that Albemarle has fully complied with its own regulations.
“The county did not vary, waive or modify, but merely administered the zoning regulation in issue,” reads the county’s response. “[It] did so in conjunction with the county’s site plan and stormwater management regulations.”
The response also claims that a zoning official would have had no power to grant a waiver, citing a Virginia Supreme Court ruling that took away the ability of staff to do so. If a “departure
” from the rules had been made, it would have had to have been done so by the Board of Supervisors, and that action would have had to have been challenged within 30 days.
Hicks also claimed that Great Eastern and Pepsi do not have legal standing to challenge the city and county’s ability to grant permits. Additionally, he said the statute of limitations for a lawsuit has passed.
“Plaintiffs failed to avail themselves of any such administrative procedures at the time the approvals or permits were issued,” Hicks continues in the response. “[They] did not file the present lawsuit until long after [Edens] had expended significant resources constructing the improvements that were identified in the plans.”
Hicks also claims that Great Eastern does not have the right to file the suit because the name under which it was filed, Sequel Investors Limited Partnership, is not the direct owner of the property.
“Instead plaintiffs allege that they either own or have a leasehold interest in ‘a portion’ of the ambiguously defined property that is misleadingly described as [their] properties,” Hicks wrote. “There is no way for the defendants or the court to know what land each of the plaintiffs own or what the alleged harm will be.”
Attorneys for Great Eastern and the Pepsi Cola Bottling Co. will have the chance to make their own responses in advance of a hearing scheduled before Judge Cheryl Higgins.
