Appeal

Ebony is located in southern Brunswick County, VA - en route to Lake Gaston from I-85

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save ebony's historic integrity, unspoiled setting, homelife, local stores

Summary of activity 1/30/20 - current (last updatE 03/24/24)

NOTE: The court system was delayed due to Covid-19 and thus this case moved slowly the first year.

In an attempt to live with the decision, we reached out to Jerry Jones - landowner - to provide store design input in an effort to steer toward a look and feel that would not be as damaging as the standard Dollar General box store; Jerry appreciated the outreach and said he would pass along; we never received any response
In parallel, researched options and implications for Appealing
Raised Round 1 funds to prepare and kickoff Appeal ($9300)
Made decision to proceed with Appeal and engaged attorney to represent us
Reached out to Prospect Cemetery Association (PCA) to propose the cemetery association join the appeal as the landowner on the south side; the PCA directors voted to join.
2/28/20: Filed Petition to Appeal; Petitioners are Anne Edwards Hartley and Prospect Cemetery Association - landowners on both sides of the rezoned property and on behalf of all those who have opposed the rezoning and Dollar General in th Ebony location
Invited and received numerous Amicus Brief submissions from those who have chosen to go on record in support of the Petition;
Judge assigned (Sharrett) then reassinged to Saunders for 8/3/20 hearing
Casework
Delivered subpoenas to gather communication between parties
Received FOIA Response: Sands Anderson Billing - to date and ongoing
Set up a Donation page and separate bank account
Kicked off Round 2 fundraising to support Appeal ($7500)
Received a response to Petition from the County Attorney's firm on 4/8; the response was in the standard form of a Demurrer stating that the Petition is irrelevant with no basis to move forward in a court of law
5/29/20: Filed Response of Opposition to Demurrer
Received from the County an Amendment to Demurrer which required analysis and response.
7/29/20: Filed Response of Opposition to the Amended Demurrer
7/29/20: Filed Motion for Summary Judgement (Subdivision Ordinance)
7/31/20: Filed Motion for Summary Judgement (Traffic Impact with No Study)
8/3/20: Demurrer hearing - Initial Petition
8/26/20: Rezoned property was subdivided with plat recorded on 8/26/20. The subdivision process was not followed.
10/14/20: Filed Amended Petition per the ruling from the Aug 3, 2020 hearing.
12/18/20: Filed Response in Opposition to County's Demurrer for Amended Petition.
2/1/21: Issued second round of subpoenas to gather communication between parties since May 2020
04/30/21: Filed Reply to County's Respone to Our Opposition
04/30/21: Filed Motion to Continue after discovering that the plat for the targeted Dollar General has been recorded without proper adherence to Subdivision process and directly impacts the subject property of the Appeal. The property has not changed ownership. Motion was denied.
05/03/21: Demurrer hearing for Amended Petition took place
08/03/21: Judge's ruling received that Petitioners survive Demurrer
Sep 21 - Feb 22: Several attempts to settle out of court were rejected; monthly BOS meetings during Public Comment were used to put visibility on the case and encourage settlement.
10/20/21 Board of Supervisors Meeting: 2 citzens from other districts used the Public Comment period to highlight the case, the amount of money the County has spent to defend their position - and to encourage settlement. Here is a link to the newspaper article: https://tinyurl.com/yc6yjfnr
12/15/21 Board of Supervisors Meeting: a Meherrin District citizen spoke during Public Comments to encourge County to accept settlement opportunity and reverse the rezoning. Here is a link to the newspapr article: https://tinyurl.com/5a9ewb3v
1/19/22 Board of Supervisors Meeting: Comments from Ebony resident encouraging the Board to accept settlement and reverse zoning to prevent Dollar General were read. Here is a link to the newspaper article: https://tinyurl.com/y8ebrxuz
1/19/22 Board of Supervisros Meeting; Each member of the Board of Supervisors was presented a personalized copy of the reprinted Ebony history book that was originally published in 1993. Link to newspaper article: https://tinyurl.com/24mt8mdj
1/26/22: Mandatory pre-trial Judicial Settlement Conference
3/16/22 Board of Supervisors Meeting: Ebony resident spoke durig Public Comments to encourage settlement and reversal of zoning decision. Here is a link to the newspaper article: https://tinyurl.com/2p972n6d
Feb 22 - Mar 22: Efforts by both Counsels to schedule trial failed.
6/3/22: Pre-trial Scheduling Conference that was derailed by the County's submission of a Summary Judgment intended to circumvent a trial. The judge denied Petitioner's request to deny the Summary Judgment and continue to the path to trial.
8/26/22: Notice of Appeal to Virginia Court of Appeals. The judge gave the Summary Judgment to the County. After assessing the options, the Petitioners filed a Notice of Appeal with the Virginia Court of Appeals. The Appeal challenges the Summary Judgment and decision being allowed to overule Petitioner's rights to a trial and a couple of other rulings from the Brunswick Civil Court.
12/18/22: Filed Assignment of Errors. The first filing with the VA Court of Appeals which states claims on what Petitioners think the Brunswick Count Civil Court handled incorrectly.
01/10/23: Filed Initial Brief. The second filing which elaborates the Assignment of Errors and requests that our case be sent back to the Brunswick Court to proceed with Trial.
03/31/23: Filed request to Virginia Court of Appeals to move Supreme Court to go ahead and take the case rather than waiting for another possible cycle with Brunswick Circuit Court.
11/16/23: Hearing with the Virginia Court of Appeals where Plaintiffs share oral argument.
03/05/24: Filed Notice of Appeal. Plaintiffs filed a motion of intent to appeal to the Supreme Court of Virginia..
03/08/24: Filed Request for Extention to File Petition. The request was grated; Plaintiffs' petitions are due April 15, 2024.

COURT HEARINGS, RULINGS, SETTLEMENT OFFERS;

August 3, 2020 @ 9AM Hearing: Demurrer hearing in Brunswick Circuit Court. The Honorable Carson Saunders heard from both sides and responded there was a lot to consider. He indicated a response would be rendered in writing as soon as possible.
September 24, 2020 Ruling: Petitioners received a letter giving us 21 days to file an Amended Petition to include all supporting evident of our claims in the original Petition. Petitioners had provided this detail in a separate document called Response in Opposition to the Demurrer. It further stated that if Petitioners did not file the Amended Petition within the designated timeframe, the Demurrer would be sustained. Petitioners filed the Amended Petition as required.
May 3, 2021 @ 9AM Hearing: Demurrer hearing in Brunswick Circuit Court for Amended Petition filed on 10/14/20. After hearing from both sides, the Judge once again, said it would take him some time to reread and digest all of the documentation presented by both sides and would render his decision in writing as soon as possible. It is rare for a Judge to rule against the County with this type of case. Petitioners knew that when they initiated the Appeal but felt that too much was at stake not to try. Petitioners have a strong fact-based legal case that shows how the County did not follow Virginia statutes and local Ordinances in approving the rezoning that stands on its own. This is making it hard for the Judge to rule in favor of the County. See related Facebook post.
August 3, 2021 Ruling: Petitioners received a ruling from the judge in response to the 5/3 Demurrer hearing that is very encouraging. The County, after spending a ballpark of $80,000 trying -- $63,000 on this appeal and another $17,000 on a second related appeal --- was not successful in having the case dismissed via the Demurrer! Petitioners prevailed on two of their claims which give them legal basis to go to trial. They are: 1) misalignment with the Comprehensive Plan and 2) not upholding legal statutes associated with zoning matters. The fact that the Petitioners survivied the Demurrer on these points makes it more likely that they could win the case if it goes to trial.
August 12, 2021 Offer to Settle: Petitiners sent an offer to the Board of Supervisors dated August 12 to settle this case by reversing the rezoning in lieu of going to trial. This would avoid any further use of County funds to defend an illegal position that is being challenged with the Appeal. Had the Supervisors all voted -- or at least three -- to simply follow the zoning management laws to do the right legal thing, the rezoning would have been denied. Two if the three supervisors chose the right path and were overruled by the remaining 3. One of the co-chairs, voting to approve the rezoning to accommodate Dollar General, broke the tie resulting in the approval. The other co-chair and home district supervisor with one other supporting supervisor voted to deny the approval. This offer was rejected without any feedback.
November 8, 2021 Second Offer to Settle: Based on feedback after the Oct 20 meeting, Petitioners submitted a second offerto addressed the feedback.
November 22, 2021 Third Offer to Settle: A third offer was submitted that addressed the feedback.Three Supervisors are required to agree with the settlement for it to be accepted and as of the November 17 meeting, There were still only two.
Novmber 17, 2021 Board of Supervisors Meeting: The board discussed the second offer in the closed session prior to the public meeting. The offer was not accepted; however feedback was provided.
12/15/21 Board of Supervisors Meeting: The Board chose not to discuss the 3rd proposal. The response from the County Attorney was to move forward with a mandatory judicial settlement conference that is a required step before sceduling trial to see if settlement is possible.
January 26, 2022 Judicial Settlement Conference. Retired Judge O'Hara presided over this session. There was no resulting settlement. However based on what Petitioners learned, it seeded an idea for a 4th settlement proposal.
February 1, 2022 Fourth Offer to Settle. As part of the fourth settlement, Petitioners offered to move forward in partnership with the Board and use funds from both sides toward a conciliation settlement to the third parties (landowner and PAR5) in exchange for the Board voluntarily reversing the rezoning decision. The original decision exceeded their authority per Virginia statutes and is in conflect with many aspects of the Comprehensive Plan. This is the basis of Petitioners claim that prevailed in the Demurrer. Even so, Sands Anderson continues to discourage settlement efforts, claims they can win the case eventhough they were not successful in dismissing the case, and the Board does not seem to be questioning Sands Anderson - just following their lead. The fact that Sands Anderson led the county down the Demurrer path spending more than $100K and lost does not seem to matter to Brunswick County leadership. The Demurrer has proven to be was a waste of time and and county funds. However, the Board is opting to continue to spend county funds by proceeding with the court case.
Planned June 3, 2022 Pre-Trial Scheduling Conference. Typically both counsels work together to create a mutually acceptable scheduling order that would include not only the trial date but also sequencing of pretrial Discovery activity. This approach was not successful as Sands Anderson opposes Petitioners' right and request for a jury trial. They also want the court to consolidate the Dollar General rezoning case with the second Ebony rezoning appeal. The second appeal was filed by Anne Hartley after th County denied her application to rezone her nearby personal property that was improperly rezoned in 2003 to B-1 (and never used for the intended purpose) back to A-1. The use of the property never changed. Petitioners are preparing for the June 3 hearing.
Actual June 3, 2022 Hearing. County's attorney, Sands Anderson, filed Motions for Summary Judgment for both cases and requested them to be heard during the 6/3 session. Petitioners filed Motions to Defer/Stay All Summary Judgment Proceedings and stay focused on the orginal purpose of the schedulig cpnference. The preciding Judge Sherrod denied the Motions to Defer and chose to hear the Motions for Summary Judgment. After 2 hours hearing both sides, Judge Sherrod announced that a decision would be forthcoming in writing -- while allowing after both sides to provide additional written responses supporting or opposing the claims by the County of undisputed material facts substantiating "reasonableness" of their decisions. All other motions were put on hold until closue on these Motions for Summary Judgment later in the summer.
August 1, 2022 Ruing on Motion for Summary Judgment. Judge Sherrod ruled in favor of the County and largely dismissed Petitioners' claim that had survived the Demurrer which was ruled on by a differnt judge. One judge upholds Petitioners' claims and another dismisses.
November 16, 2023 Oral Arguments Before Virginia Court of Appeals. Each side was alloted 20 minutes to share oral argument before a 3-judge panel. Sands Anderson largely summarized the finding of the Summary Judgement that ruled in their favor. We introduced 2 new VA Court of Appeals case ruling this year that largely support our position and why we are appealing. Plaintiffs reiterated the Demurrer findings that sustained arbitrary and capricous (unreasonableness) claims. If the Court of Appeals sustains the Summary Judgement, that would be in conflict with the 2 cases mentioned.
February 13, 2024 Virginia Court of Appeals (VCA) Issued Their Opinion. VCA sustained the Summary Judgement handed down by the Brunswick Circuit Court, in favor of the County. Their opinion was also published which means it now sets legal precedent. This opinion largely renders the comprehensive plan, zoning statutes, and local ordinances almost meaningless if they can be circumvented so easily. Given the ruling by the VCA to sustain the Summary Judgement and the broadscale implication of the published opinion, Plaintiffs have decided to appeal to the Supreme Court of Virginia and hope the Supreme Court will not agree with the VCA opinion and choose to take a stands for their laws and enforcement as intended.

5/29/2020 Response of opposition to Demurrer filed

On Friday, 5/29, we filed Petitioners' Response of Opposition to the County’s Demurrer. The Demurrer filed by the County in response to the Petition to Appeal is a typical first step which tries to make the case we don’t have a case and it should be thrown out. Our response makes it very clear and compelling that we do have a case, it is solid, and must be heard. The hearing for the Demurrer is scheduled for August 3.

2/28/2020 Petition to appeal submitted

Case # CL20000073-00

After taking 30 days to figure out our strategy, a Petition was filed on 2/28 to appeal the 1/29 Ebony Rezoning decision that paves the way to bring in Dollar General to Ebony. The case number is CL20000073-00 (CL 20-73)

Petitioners (Plaintiffs) are listed as Anne Edwards Hartley and the Prospect Cemetery Association - the neighboring property owners - representing all who stood up in public opposition to rezoining and Dollar General in the Ebony community - and all those in opposition but chose to remain quiet. The attorney who will lead the appeal process for us is John M. Janson of South Hill (VSB #: 91236).

Land use is Brunswick County's most valuable asset. Our Petition is designed not only to reverse the 1/29 Ebony rezoning decision but also to prevent future efforts to inappropriately commercialize Ebony and sets a precedent to protect all A-1 districts. In this case, 3/5 Supervisors -- none of which represent the Meherrin District -- voted to force the rezoning to pass to accommodate Dollar General. They abandoned their responsibilities to enforce the Comprehensive Plan and Zoning Ordinances.

The Comprehensive Plan is clear that Ebony is to remain a A-1 district with no B-1 spot-zoning to accommodate business needs. The outcome of this case reflects exactly what zoning management is intended to prevent. Zoning in A-1 districts is supposed to use a Conditional Use Permit to consider the needs and introduction of business to ensure the character of the community is protected and does no harm. These land use management tools also suggests that Dollar General is not a fit for Ebony.

Spread the word and stay tuned!

Submit Amicus brief to add your support

To strengthen our case, we encourage all who are willng to go on record in support of this appeal to submit via US Postal Service the Amicus Brief provided here. Just add your reasons for opposing the vote and supporting the petition to appeal and mail to designated recipients. Thus far we have receipted submissions from: Bobby Conner, Lisa Conner, Patricia Conner, Tony Conner, Elizabeth (Libba) Moseley, Sarah Nash Moseley, Diana Sadler Parker, Dorinda and Hal Paxton, Kay Lynch Whitehead, and Joan Wojeikewych.

save ebony's historic integrity, unspoiled setting, homelife, local stores

Stay up to date on appeal activity

One Page Overview AS OF 5/29/2020

Summary of activity 1/30/20 - current (last updatE 03/24/24)

NOTE: The court system was delayed due to Covid-19 and thus this case moved slowly the first year.

3/31/23 Request to TRANSFER CASE TO VA Supreme Court

01/10/23 Opening Brief (VA Court of Appeals)

12/19/22 Assignment of errors (VA COURT of appeals)

08/26/22 Notice of appeal (VA Court of appeal)

7/01/2022 BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

4/30/2021 REsponse to CoUNTY's REPLY TO OPPOSITION TO Demurr

12/18/2020 Response in opposition to county's demurrer

10/14/2020 amended Petition filed

7/29/2020 RESPONSE IN OPPOSITION TO AMENDED DEMURRER FILED

5/29/2020 Response of opposition to Demurrer filed

2/28/2020 Petition to appeal submitted

Case # CL20000073-00

Submit Amicus brief to add your support