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April 10, 2014

Next mayor hopes town settles Winchester St. suit

The Warrenton Planning Commission in August voted, 5-2, to recommend town council approval of a plat — or layout — that provides vehicle access only via Winchester Street, directly across from North Court (left).
A fair settlement (which often is one that leaves everyone a bit unhappy) is preferable to leaving matters in the hands of the courts.
— Councilman Powell Duggan, candidate for mayor
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The next mayor thinks Warrenton should settle with a real estate developer whose lawsuit alleges the town has exceeded its authority under state law.

Ward 1 Councilman Powell Duggan, the only candidate for mayor in next month’s election, has refused to discuss Jeffrey K. Rizer’s lawsuit over the proposed Winchester Chase subdivision, which has by-right zoning for 72 homes or more.

But, Mr. Duggan provided details of negotiations and his preference for settlement in a Wednesday morning email to a group of citizens, many of them Winchester Street residents, and town officials.

“A fair settlement (which often is one that leaves everyone a bit unhappy) is preferable to leaving matters in the hands of the courts,” wrote Mr. Duggan, who practices law in Warrenton.

In another email, at-large Councilman Roger Martella, a lawyer who also has participated in negotiations with Mr. Rizer and his consultants, similarly expressed his preference for “an amicable resolution.”

Mr. Rizer alleges town officials illegally attached conditions to the Warrenton Planning Commission’s 5-2 vote in August, recommending council approval of the 25-acre Winchester Chase preliminary plat. In a phone interview, he said town officials have wasted his time and money since August.

FauquierNow obtained a series of recent emails — which have circulated widely — about the Rizer subdivision. Those messages started with a Tuesday morning letter, via email, from Winchester Street resident Stephen Bathon, who urged the town council to reach a settlement with Mr. Rizer.

Mr. Bathon thinks the best resolution would return to the basics of the first of 12 different subdivision layouts the developer’s engineer has produced. The original plan called for access from Winchester Street to the west and North Hill Drive to the east.

But, town officials objected to the possibility of a shortcut or “connector street” through Warrenton Chase.

The developer produced 11 more potential layouts for the subdivision.

Ultimately, the version that the planning commission OK’d calls for all traffic to enter and exit via historic Winchester Street — something town officials for years have vowed would not happen.

In recent negotiations, town officials asked Mr. Rizer to buy three more parcels and to build an extension of Branch Drive south, from BB&T on Lee Highway, across a creek, through difficult, steep terrain to Winchester Chase.

That would cost an estimated $4 million. The developer balked.

Nor could Mr. Duggan “recommend that the town pay for this,” he wrote.

This email from Mr. Duggan includes references to John Foote, the lawyer representing Mr. Rizer, and Town Attorney Whit Robinson:

From: Powell Duggan [mailto:pduggan@walkerjoneslaw.com]

Sent: Wednesday, April 9, 2014 10:39 AM

To: ELISABETH JONES; Stephen Bathon; Roger Martella; Kimberly Wright; Gina Farrar; Gayle Bathon; Dudley Payne; Cheryl Shepherd; Cathy Foster; Bill Chipman; ASSOCIATES ZARABI; 'Ann Sentz'; Ann Payne; John Rendleman; Blair Lawrence; Powell Duggan; Brian Athey


Subject: RE: letter to town council

Good morning,

Roger and I have been following the age-old advice that a client should not say anything while a case is in litigation. Mr. Rizer apparently has chosen not to follow this path, which puts Roger and me at a real disadvantage when it comes to clearing up misinformation. Nevertheless, I will try to give you some basics although I would like to give you more information.

After Mr. Rizer’s suit was served, we had what I considered to be a productive meeting on March 28. On that date Mr. Rizer presented a new plat with some of the features Mr. Bathon has described. Following the instructions from most of you, we said we wanted to nail down the costs of a potential road out to BB&T to determine whether it would be feasible for the town to pay to acquire right of ways and construct it. We promptly proceeded to do this. Mr. Rizer’s engineer agreed to make some changes to the plat. Late last week, with the help of staff we determined that such a road would be very expensive. At a price at around $4,000,000, I cannot recommend that the town pay for this.

On Friday, April 4 (one week after the meeting), our attorney, Whit Robinson tried to contact Mr. Foote to follow up. Mr. Foote was not available. I believe he was and still is out of town. Earlier that week, Mr. Rizer had sent me a revised plat with a Friday deadline for acceptance. Having no authority to accept or reject this, I forwarded it to Mr. Robinson (and others) so that he could address it with Mr. Foote, which he attempted to do.

Yesterday, Mr. Robinson did reach Mr. Foote.

There are two tracts here. One is litigation and the other, negotiation. The litigation is ongoing, as from my perspective is the negotiation, or at least the opportunity to negotiate. This matter is not even before the council. If it were, Roger and I would have the authority to cast our two votes. If we believe that a proposal is the best result for the town, the most we can do at this time is to advocate for it and try to find ways to streamline the process to bring it to a conclusion.

A fair settlement (which often is one that leaves everyone a bit unhappy) is preferable to leaving matters in the hands of the courts.

In my opinion Roger and I have worked hard and diligently on this, and if given the chance will continue to do so.

Regards,
Powell

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TodNehman · April 12, 2014 at 10:54 am
ADDENDUM: Please change the town town name to New Centreville also as part of the settlement....Why not soon we will have the shoe-horned houses and herds of cars to match!
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