An April 26 hearing date has been set in Circuit Court for a judge to rule on defense motions regarding a multi-million lawsuit filed against Essex County and three officials claiming a conspiracy that “unreasonably and unlawfully” stalled its proposed project in the Town of Tappahannock for a period of 19 months.
The suit was filed Sept. 8 in Essex County Circuit Court by Riverstone Development Inc. Riverstone is creating a 153 unit apartment complex on 15.3 acres of property located along Hobbs Hole Drive.
Defendants are Essex County, former Essex County Building Official Alwyn W. Davis Jr., for- mer Essex County Administrator Michael Lombardo, and former Essex County Building Inspector Steven Wayne Verlander.
Riverstone has requested a jury trial and seeks $10 million in each of its four claims and $350,000 in punitive damages concerning two counts.
The project was stalled by the county’s inaction regarding firewalls being used for the project instead of a sprinkler system, the suit claims.
Riverstone hired professional engineer and land surveyor Jeff Howeth to prepare site plans and oversee the project during the planning and development stages.
During his review of the project, Howeth determined that the Town of Tappahannock’s water system could not supply the proper water pressure to support a fire sprinkler system for the project, the lawsuit states.
According to the suit, the state building code allows an exception for such projects whenever necessary water pressure or flow is not available, provided the buildings meet other requirements such as the number of units and use of firewalls.
“The conduct of the County, along with Davis, Lombardo, Verlander was driven by their desires for retaliation, intertwined with their long standing conflicts of interest,” the lawsuit says. “To thwart Riverstone’s development, and to exact revenge on Riverstone’s engineer, Defendants refused to recognize a straightforward exception in the building code that provided Riverstone the legal right to develop its apartments with firewalls instead of a sprinkler system. But to fully punish Riverstone and its agents, Defendants did not simply deny the applicability of the exception — instead, Defendants refused to make a decision one way or the other in order to indefinitely delay Riverstone, in hopes Riverstone would ultimately choose not to develop.”
Additionally, the lawsuit says that in a July 19, 2021 letter from new Essex Building Official Ernest Sadler, Riverstone was informed that its request for an exception was approved.
“This conclusion could have, and should have, been reached in January of 2020, but for the retaliatory, arbitrary, and capricious actions of the County through Davis and Lombardo,” the lawsuit says.
Defense counsel has filed a “special plea in bar and demurrer of defendants” which the court will consider In April.
A plea in bar is a pleading that presents a single set of facts that, if proven true, would bar the plaintiff’s claim from going forward. A demurrer is the equivalent of a motion to dismiss for failure to state a claim.
The response says that Riverstone’s allegations that county officials’ actions related to the building permit violate state code as a statutory business conspiracy…”is predicated entirely, as a matter of law, on the existence of purported tortious interference.”
The response further states that “Riverstone next asserts inverse condemnation against the County, alleging that the property it is currently developing had no economically viable use, without pointing to any purported damage or conversion of the property by the County for public use whatsoever. Finally, Riverstone makes allegations against Davis of “conflicts of interest” and “negligence per se,” which, if cognizable, are not actionable.”
Moreover, the response says that “the four Counts of Riverstone’s Complaint fail to state a claim against the County Officials and the County, notwithstanding the extensive factual allegations that precede them. The Defendants therefore file this demurrer.”
The response also says “there exist absolute defenses to Riverstone’s claims based on facts that are conspicuously absent from the Complaint.”
Also, the response says that “Riverstone’s allegation that the County’s new building official, Ernest Sadler, approved the building permit application “without any further information” is provably false, and the County will produce evidence demonstrating as such. This, together with prior rulings affirming the County Official’s actions, constitute an absolute defense to the claims against the County Officials. And any claim against Davis is barred by sovereign immunity.”
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