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On Friday, September 18, a formal zoning appeal was filed with the Board of Zoning Appeals (BZA), which contests the right of The O'Gara Group to build their school on the A1 land that they purchased, and also on the IDA shell building property. The filing of this appeal forces construction to stop until the BZA resolves the issue.
BOARD OF ZONING APPEALS
Owner/Applicants seeking review of Zoning Administrator decision:
1 George J. Ripol and Susan Hoge Ripol 3103 Cople Highway Montross, Virginia 22520 804-493-0895
2 Mary Porter Hall 14201 Kings Highway Montross, Virginia 22520 804-493-9394
3 Harry and Bonnie Boyden
P.O. Box 234 Bel Alton, Maryland 20611 301-934-9422
BOARD OF ZONING APPEALS SUPPORTING DOCUMENTS
1. Memorandum, Gary Ziegler to Board of Supervisors, September 17, 2008, subject "County Shell Building" and "Tax Map #35-106," with attachments.
2. Recorded Plat, SDZ easement on O'Gara site, recorded July 30, 2009.
3. Proposed O'Gara Gun range Evaluation and Recommendations, William Thornton, Ph.D., P.E., August 10, 2009.
4. Letter, Robert Fink, ZA to Peter Henderson, Site Plan Approval for Phase A-l, Training Facility and Academy, The O'Gara Group, Tax Map ID #35-106, dated August 24, 2009.
5. Letter, Robert Fink, ZA, to Carline Peters, Esq., Re: August 31 letter requesting zoning interpretation regarding the O'Gara Training Facility and Academy, Tax Map ID #35106, dated September 8, 2009.
6. Aerial Photo (Google) showing site and surrounding landowner parcels, April 2006.
7. Real Estate Purchase Contract between the Westmoreland County Industrial Development Authority and The O'Gara Group, Inc., dated January 12, 2009.
8. Real Estate Purchase Contract between Westmoreland County Industrial Development Authority and the O'Gara Group, Inc., undated but believed to have been executed on June 22, 2009.
9. Letter, David Bailey, Environmental Law Group, PLLC, to Robert Fink, ZA, Request for Contract Compliance Opinion, June 9, 2009.
10. Training Facility and Academy Phase 1A Site Plan, Bury+Partners, Inc., dated July 7, 2009, 10 sheets, incorporated by reference due to size of documents.
11. Training Facility and Academy Phase IB Site Plan, Bury+Partners, Inc., dated June 29, 2009, 13 sheets, incorporated by reference due to size of documents.
12. Letter, Robert Fink to Peter Henderson, O'Gara, site plan review for Phase IB, dated September 14, 2009.
13. Website company identification, The O'Gara Group.
NATURE AND PURPOSE OF THE APPEAL
This appeal, brought on behalf of two adjacent property owners and one owning property in the same district, Exhibit 6, seeks review by the Westmoreland Board of Zoning Appeals ("BZA") on several grounds regarding the Westmoreland County Zoning Administrators' approval of a site plan submitted by The O'Gara Group, and the Zoning Administrator's reliance on a zoning compliance opinion written in September 2008 as the basis for his determination of compliance with Westmoreland County Land Use Ordinances. Jurisdiction for this appeal is found in Va. Code § 15.2-2311 and the Westmoreland County Land Use Ordinance, wherein any "person aggrieved" may appeal to the BZA "any" decision of the zoning administrator regarding zoning decisions, requirements or compliance thereof. The appeal forms and fee have been enclosed.
FIRST ISSUE ON APPEAL:
The first question to be decided by the BZA is whether the zoning administrator has made a proper decision in form and time at all, or as in this case, whether the zoning administrator has adopted, relied upon and now seeks support in, a decision which is not proper under the code and the zoning administrator's authority. While normally an appellant would not appeal the lack of a decision, as Va. Code § 15.2-2311 contemplates an existing decision to be appealed, the Appellants are forced to appeal the zoning administrator's decision to "adopt" as his own, after the fact, an earlier opinion by a former zoning administrator, Mr. Ziegler. Therefore, the threshold question before the BZA is whether the zoning administrator could, and did, properly rely upon or adopt a prior opinion letter as his own to issue a site plan approval without more. Appellants assert that no proper, legal, zoning administrator decision has ever been rendered with respect to The O'Gara Group project, and the current zoning administrator has refused to render a new or proper land use decision, yet continues to approve O'Gara applications. Therefore, for this reason alone, the current zoning administrator's decision to approve the Phase Al site plan for the O'Gara Group was illegal, without authority and is void ab initio. Similarly, the zoning administrator clearly intends to approve Phase IB of the O'Gara project in reliance on the same opinion. Exhibit 12.
The evidence starts with Exhibit 1, the "Ziegler" memorandum issued on September 17, 2008. It is this memorandum that the current zoning administrator states that he relies upon and that O'Gara relied upon for the purpose of approving the Phase Al Site plan.1 See, Exhibit 5. Inherent in the zoning administrator's decision is that "the O'Gara Group had relied on Mr. Ziegler's determination of September 17, 2008." Exhibit 5. Such a conclusion is improper, illegal and factually untrue. First, reliance by O'Gara, even if true, is not the same as a decision by the zoning administrator as to land use; i.e., whatever an applicant may rely upon does not determine whether such reliance is legally justified. To even begin with, there must be a proper decision of the zoning administrator, by law and ordinance, not the Applicant's conclusions.
V While the zoning administrator attempts to allege some form of reliance by O'Gara on the Ziegler memo, the zoning administrator cannot create such reliance, O'Gara's own actions do not indicate such reliance, and in any event, the Ziegler memo did not address or name the O'Gara application. Thus, for purposes of the this appeal, Appellants give no credence under the law to a claim of reliance by O'Gara on the Ziegler memo as asserted by the zoning administrator.
The Ziegler opinion is not a proper zoning administrator's decision with regard to The O'Gara Group. Legally this is so because the Ziegler opinion never mentions "The O'Gara Group by name and does not render a decision specific to "The O'Gara Group." While some of the factors the Ziegler memorandum addressed are similar to The O'Gara Group, such as a discussion about a "school" or "dormitory" issues, other conditions are not only dissimilar but contradictory. For instance, the Ziegler opinion depends heavily, almost exclusively, on the land use ordinance reference to SIC Codes and "Military Training Schools" as the basis for his determination that the "military school" by O'Gara would be in compliance with section 2-24.9 of the zoning ordinance. However, The O'Gara Group does not qualify under the SIC codes cited because the SIC citation, number 9711 "National Security" is explicitly limited to "Establishments of the armed forces, including the National Guard, primarily engaged in national security and related activities." See, Ziegler memorandum attachments "SIC description for 9711." The O'Gara Group is a privately owned security organization, not an establishment of the U.S. armed forces as described in the SIC description. The Military Training School of O'Gara is not an establishment of the armed forces of the United States. O'Gara is a private, security company offering training services for mercenaries and/or hired security forces.
Therefore, the Ziegler memorandum, because it fails to address The O'Gara Group by name, and references military schools that are not private and not O'Gara, it is not possible to argue that the Ziegler memorandum rendered any opinion even remotely specific to The O'Gara Group. This is further confirmed by the proposed contract offered by The O'Gara Group to purchase the Westmoreland County Industrial Development Authority ("IDA") land, prepared months after the Ziegler memorandum, which contains a contract condition that requires the IDA to provide a "LETTER OF COMPLIANCE issued by the appropriate Westmoreland County
Governmental Agency" (emphasis in original). See Exhibit 7, contract paragraph 13. This
contract was approved by the IDA. It is not possible to argue that the Ziegler opinion was a
competent land use zoning decision relied upon by The O'Gara Group because, by their own contract, they did not rely upon it, nor did either the IDA or Westmoreland County.
Applicants, by counsel, have repeatedly asked for a copy of the "letter of compliance" mentioned in the IDA contract, requests which were repeatedly ignored by the zoning administrator. Exhibit 9. Finally, the County Attorney advised that no such letter was ever issued. Thus, the letter of compliance, the real and legal land use decision regarding The O'Gara Group, was never issued. Only after the IDA and the Board of Supervisors were sued for violations of the Virginia Freedom of Information Act did the IDA revisit the contract and issue an new version which did not contain the compliance letter clause, but that was not until June 2009. Exhibits.
For these reasons, Appellants assert that no proper land use decision regarding The O'Gara Group's compliance with land use ordinances has ever been issued by any Westmoreland County Zoning Administrator, and for that reason, the present zoning administrator cannot simply refer back to a September 2008 memorandum as the controlling opinion, because it is not and can not be so. As this appeal is filed, the zoning administrator has never issued a proper land use opinion, refuses to do so, and continues to rely on an improper opinion to approve the Phase Al site plan for The O'Gara Group.
SECOND ISSUE ON APPEAL
Without waiving any claim that the zoning administrator has not rendered a proper and
legal land use zoning opinion for The O'Gara Group, and therefore illegally approved the Phase
Al site plan in reliance on the Ziegler opinion, the Ziegler Opinion is still subject to review by
the BZA under the provisions of Va. Code § 15.2-2311.
Code Section 15.2-2311 (A) provides for a 30 day window for appeal of a zoning administrator's decision. Inherent in the law regarding such an appeal is that the Appellant has a reasonable opportunity to know that a decision was actually rendered. As already noted, where the opinion does not identify or address a particular applicant, there is no way for any reasonable person to know that such an opinion was rendered and make a timely appeal. This is certainly the case here, even if the opinion is determined to be valid as to The O'Gara Group.
The General Assembly addressed this problem in particular thought enactment of section 15.2-2311(C), wherein it is stated that no opinion shall be reversed after 60 days (thus tacitly recognizing the 30 day notice issue) unless the decision was obtained "through malfeasance of the zoning administrator or other administrative officer or through fraud." Without waiving the objection that no opinion was rendered in September 2008 because it failed to identify The O'Gara Group and applied conditions not relevant to O'Gara, the opinion in this case will (1) constitute malfeasance if the opinion was originally intended to apply to O'Gara, because its original purpose and application was intentionally concealed; and (2) would constitute fraud if the purpose of the opinion was to disguise and hide the O'Gara application. Appellants would prefer to believe that Mr. Ziegler intended to render only a non-binding advisory opinion on the general subject of schools and the applicable zoning, and never intended to hide anything, or defraud the public, and are loath to demean the person of an individual who is no longer here to defend his reputation. However, if this BZA elects to support the position of the current zoning administrator that the Ziegler opinion was final and binding for The O'Gara Group, then
Appellants are forced to allege that review of such decision is still available by operation of the provisions of Va. Code § 15.2-2311(C) as obtained by both fraud and malfeasance.
THIRD ISSUE ON APPEAL
Without waiving any objections or positions asserted in either of the first two issues, Appellants assert that the Ziegler memorandum, if the BZA chooses to rely upon and endorse it as a valid land use opinion applicable to The O'Gara Group, does not provide valid proof that The O'Gara Group proposal meets Westmoreland County Land Use Ordinances.
The BZA must consider two zoning compliance conditions: (1) the County Shell Building and (2) the abutting parcel, the Chandler property, Tax Map #35-106. Although the zoning administrator has only approved a site plan for the land development on the Chandler property, the Appellants must assume, and address, both land uses as the Ziegler memorandum purports to address both situations. The County Shell Building
The BZA is asked to reverse the Ziegler opinion as to the County Shell Building as any conclusion that The O'Gara Group use is permitted is clearly erroneous. The zoning administrator correctly identified the County Shell Building as part of the Industrial Planned Unit Development (IPUD) section of the ordinance. The zoning administrator also correctly identified the by right permitted uses as those stated in Zoning Ordinance section 2-24.9, which permit only two groups of use: "Manufacturing or wholesale trade" [2-24.9(1)] and "Services or Finance" [2
24.9 (2)]. Rejecting the second section for "services," Mr. Ziegler declared that the "manufacturing" operation was the best fit for his purposes. Mr. Ziegler then reviewed the SIC
code classifications under manufacturing and found sic code 9711, which addresses "establishments primarily engaged in manufacturing ordinance, ships and other military goods" which includes "military training schools." Mr. Ziegler then correctly concluded that an entity
engaged in school military training was a "military training school." Mr. Ziegler then concluded that a private security operation with a military training school would therefore be allowed in the IPUD zoning district. Mr. Ziegler also rendered a decision regarding "dormitory housing" which Appellants will not address, because it is unnecessary to do so given that the military training school decision was plainly wrong, rendering the dormitory issue moot.
Mr. Ziegler, at least as to The O'Gara Group, was plainly wrong as a matter of law. As already noted, The O'Gara Group does not qualify under the SIC codes cited because the SIC citation, number 9711 "National Security" is explicitly limited to "Establishments of the armed forces, including the National Guard, primarily engaged in national security and related activities." See, Ziegler memorandum attachments "SIC description for 9711." The O'Gara Group is a privately owned security services organization, not an establishment of the U.S. armed forces as described in the SIC description. The Military Training School of O'Gara is, therefore, not an establishment of the armed forces of the United States. O'Gara, and its military training school, is a private, security services firm offering training for mercenaries and/or hired security forces. Military Training Schools are not otherwise authorized in the IPUD zone.
For the above reason, Mr. Ziegler's conclusion as to by right compliance with the IPUD ordinance was legally wrong and error. The Abutting Parcel Tax Map #35-106
After concluding, correctly, that military training schools were a special subpart of the manufacturing SIC code, Mr. Ziegler then completely reversed himself and declared that such a
military training school was not such, but either a "general education school" or a "school,
commercial or special instruction" as those terms are employed in the by-right uses in the A-l
Agriculture Zone, which is the land use zone for tax map parcel #35-106. The A-l Agriculture
Zone does not permit, by right, a military training school. Mr. Ziegler never explains this about
face, or the inherent inconsistency of his conflicting opinions.
The school classifications in the A-1 zone, whether general education or commercial or special use, are not military training schools. The by-right schools listed in the A-l part of the ordinance are schools open to the general public, or provide education services to the general public. See, for example, definitions of "general education school": "a parochial or private school giving regular instruction during a normal school year (emphasis added)." Ordinance, Art. 12, Sec. 12-1 Definitions. A normal school year, defined by common language and understanding, as this ordinance must be interpreted, is a regular school year. The O'Gara Group has no such school year schedule, and is not affiliated with or regulated by any standard school year conditions. The O'Gara Group is plainly not a "general education school" as that term is defined or expected in the Ordinance.
Nor is the O'Gara operation a "School, commercial or special instruction" as concluded by Mr. Ziegler. The O'Gara Group is not a commercial entity, i.e., it is not engaged in commerce or trade as defined by the dictionary. It is a military training school providing independent contract workers for private security employment elsewhere. O'Gara may provide commercial products in its other operations, such as explosive devices or other security equipment, but that is not what is proposed at this site, and if it were, it would be a commercial business operation not
permitted in the A-l land use zone. The O'Gara Group is a commercial "service" business; O'Gara's , calling it a school does not make it so. Exhibit 13. This leaves the question of whether The O'Gara Group is a "special instruction school,"
which is allowed in the A-l zone. This argument fails as well as Mr. Ziegler has already defined such a facility as a "military training school" in the manufacturing SIC code. As such, a "military training school" has already been subdivided out of other types of special instruction and placed in a category by itself. There is no "military training school" by right use in the A-l zone. There are reasons for this separate treatment. A military training operation involves hazards and operating conditions that are not common to other schools, even special instruction schools. Here, for example, The O'Gara Group has already designated a significant portion of
the A-l land area as a special danger zone, Exhibit 2, and such designation merely reflects the inherent dangerous nature of the military training school operations, i.e., such operations employ explosive ordinances, firing ranges and live weapons training. These are not traditional "school" functions as contemplated in the ordinance definition. For the same reasons, a military training facility produces nuisance type noise and other conditions which are not normally associated with an educational school as contemplated for by-right use in the A-l zone. See, Exhibit 3 (more aggressive noise controls are required). Further, it is doubtful that the O'Gara product is school based at all. The O'Gara website promotes a service that provides "world class training and security resources," and describes itself as a "global products and services company." Exhibit
13. Thus, O'Gara advertises itself as a service provider, not a school, yet it goes to local governments and attempts to use general zoning conditions to call itself a "school" and avoid public scrutiny, a ploy which Westmoreland County bought into.
To further emphasize the nature of the differences between military training schools and regular schools, and why military training schools are separate, the military training schools will employ firing ranges as an integral part of the operation. Firing ranges are discrete entities in and of themselves, with special zoning and land use needs. "Firing ranges" are not listed as a permitted use in the A-l district, see section 2-13.2, nor are firing ranges listed as a permissible use, see section 2-13.3, and can not fairly be considered an accessory use, which also does not list firing ranges. Further, the Agricultural Ordinance states that the purpose and intent of the A-l Agriculture District is "[fjhese areas are used primarily for farming. This District is established to protect existing and future agricultural activities." A military training school is not a farming activity, and it is not conducive to protection of agricultural activity as the noise and disruption are decidedly contrary to animal welfare and quiet farmland atmosphere. For these reasons, the use of a firing range is so contrary to agricultural land use that the failure to list such use in the zone can not be considered a mere minor oversight or omission, or a proper use so minor in scope or scale that it may be deemed a recognized accessory use not requiring special consideration. Perhaps the most fundamental requirement of all zoning decisions is that the use must comport with the purpose and intent of the land use ordinance, and this rule is so well established that no case citation is needed. A manufacturing SIC code classification of a special land use such as a military training facility, with firing ranges, use of explosives and other military devices, located in the middle of an agricultural use district, is so fundamentally contrary to the intent and purpose of the stated land use ordinance that it can not withstand review.
FOR ALL THE ABOVE REASONS, Appellants ask the Westmoreland County Board of Zoning Appeals to reverse all actions and decisions of the zoning administrator with respect to
The O'Gara Group, void the site plan approval for Phase A-l, and stop all consideration of Phase 2 approval. Appellants note the provisions of Va. Code § 15.2-2311(B) that requires that an "appeal
shall stay all proceedings in furtherance of the action appealed." This stay applies unless the
zoning administrator unless there is "imminent peril to life or property," obviously not the
Respectfully submitted, Appellants Ripol, Hall and Boyden By counsel
rid S. Bailey, Esq. (Va Bar 24940; DC Bar 45558) The Environmental Law Group, PLLC
P.O. Box 6236 Richmond, Virginia 23230 Telephone: 804-433-1980 Facsimile: 804-433-1981 email: dsbailey(g)jgc.org
James C. Breeden, Esq. (Va. Bar 08942) Breeden and Breeden, P.C. 265 Streamboat Road Irvington, Virginia 22480 Telephone: 804-438-9595 Facsimile: 804-438-9594 Email: j breeden.
Counsel for Petitioners
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing appeal to the Board of Zoning Appeals was filed by federal express, with the applicable fee, with the Secretary for the BZA, the zoning administrator, with copies of such filing sent by U.S. Mail, postage pre-paid to
the County Attorney, Thomas O. Bondurant, Jr. P.C., County Attorney, 3600 Douglas Dale Road, Richmond, Virginia 23221-3801, and counsel for The O'Gara Group, Richard H. Stuart, P.C., 114 Polk Street, P.O. Box 1146, Montross, Virginia 22520, all this 16th day of September, 2009.
David S. Bailey