VIRGINIA: IN THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY JOSEPH B. LONG, eral, | Plaintiffs, vw Case No: CL20-75 RAPPAHANNOCK COUNTY BOARD OF SUPERVISORS, et al, Defendant, & JEREMIAH J. ATKINS, Intervenor, EINAL ORDER CAME THIS DAY, the 28" day of March, 2022, the Plaintiffs, JOSEPH B. LONG & JOHN CAPPIALI, by counsel, the Defendant, the RAPPAHANNOCK COUNTY BOARD OF SUPERVISORS, by counsel, and the intervenor, JEREMIAH J. ATKINS, by counsel, on the Plaintiffs’ Appeal of Board of Supervisors Zoning Decision from the denial of a special exception application; and AND IT APPEARING, the Plaintiffs perfected their appeal of the Rappahannock County Board of Supervisors (hereinafter “Board”) denial of the special exception application #19-01-01 on March 10, 2020, which sought approval from the Board for a permit to operate a contractos’s yard on the subject property; andAND IT APPEARING, when the appeal was filed, JEREMIAH J. ATKINS, did file a motion to intervene as a party in the suit as a person with an interest in the litigation, over the objection of the Plaintiffs; and AND IT APPEARING, trial was held in this matter on May 25, 2021, with the parties stipulating the record to be admitted and reviewed by the Court as to what constituted the record considered by the Board for the subject application, and additional evidence and testimony was admitted by the Plaintiffs and the Defendant, with the intervenor offering no evidence or testimony; and AND IT APPEARING, at the conclusion of the Plaintiffs case-in-chief the Court did find that the Plaintiff carried their burden of rebutting the presumption of reasonableness in the Board's decision to deny the application with the Court finding that the Board’s denial was arbitrary and capricious; and AND IT APPEARING, the Defendants were permitted to put on evidence to rebut the presumption and finding of arbitrary and capriciousness with some evidence of reasonableness to establish the decision as fairly debatable, and upon the conclusion of the Defendant’s case, the Court found the Board failed to catry their burden of establishing reasonableness to render their decision fairly debatable; and AND IT FURTHER APPEARING, the Court did render its ruling on the record which is made patt of this Order by reference and is attached hereto as “Exhibit A;” itis ADJUDGED, ORDERED, and DECREED; that the sclief requested by the Plaintiff's is hereby GRANTED for the reasons stated by the Court on the record. Plaintiffs’ 2application for a special exception no. #19-01-01 shall be granted as filed and further this matter is remanded to the Rappahannock County Board of Supervisors in order to effectuate Are haees Aevauedl the ruling of this Court and for all other patos consistent with rr Fs ruling, AND THIS Mh As \TTER IS naa Lec ensicten to ame ale ee dewcel . ENTERED this >“) day of _Govecct SEEN & SHWE, & ASHWELL, PLLC Bee William D. Ashwell, Esq. VSB# 83131 21 Calpeper Street Warrenton, Virginia 20186 Telephone: (540) 991-9100 Facsimile: (571) 762-1310 wda@ashwell law Counsel for Plaintiffs SEEN & SEE ATTACHED OBJECTIONS Rate 163 David L. Konick, Esq. VSB No. 17495 P.O, Box 57 Washington, Virginia 22747 Facsimile: (540) 937-5067 dikonick@earthlink net Counsel for Intervenor Jeremiah J. AtkinsSEEN & Dele 154.9 Robert T. Mitchell, Esq. VSB No. 3190 Hall, Monahan, Engle, Mahan & Mitchell 9 Bast Boscawen Street Winchester, Virginia 22604-8482 Facsimile: (540) 662-4304 rmitchell@hallmonahan.com Counsel for Rappahannock. County Board of SupervisorsSEEN AND OBJECTED TO ON THE FOLLOWING GROUNDS: 1. The Trial Court erroneously overruled objections to testimony that was prejudicial and irrelevant to the granting of the Special Exception permit, specifically testimony about events that occurred long before the SE permit was filed including but not limited to testimony concerning the issuance of a Stop-Work Order by the County Soil and Erosion Control Officer that had nothing to do with the approval or denial of the SE permit in question, none of which were in the administrative record. 2. The Trial Court erroneously shifted the busden of proof to demonstrate that the proposed use was reasonable and in accordance with the Zoning Ordinance and the Comprehensive Plan from the Petitioners to the County and to the Intervenor despite contrary provisions of the Zoning Ordinance. 3. The Trial Court erroneously ignored credible record evidence that the Petitioners failed to comply with the Zoning Ordinance that “the proposed use shall be such that it will not adversely affect the use or development of neighboring properties” and ignored credible record evidence that the proposed use would impair the value of Intervenor’s property. 4, The Trial Court erroneously ignored the applicable legal standard that in order to overcome the presumption of correctness such as would warrant reversal of a denial of a conditional use permit, the Petitioners had the burden to prove that the use of their property for alf other permitted uses not requiring the Special Exception permit were unreasonable and that the Applicants failed to present such evidence, as a tesult of which the denial of the SE permit was proper. 5... The Trial Court erroneously ignored credible and unrebutted evidence that other permitted uses under the Zoning Ordinance were being conducted on the Subject Property (residential use and agricultural use), and erroneously failed to conclude that the “reasonably debatable” test was satisfied and the SE Permit denial was proper. City Council of City of Virginia Beach v. Harrell, 372 S.E.2d 139 (1988). Board of Supervisors of Roanoke County v. International Funeral Services, Inc. 275 $.E.2d 586 (1981); Fairfax Co. v. Jackson, 221 Va. 328 (1980); City of Richmond v. Randall, 211 S.E.2d 56, (1975). 6. In “remanding” the case to the governing body with instructions to issue the SE Permit, the Trial Court erroneously violated the separation of powers doctrine and erroneously failed to recognize that Courts have no power to re-zone land or to issue an SE Permit or to order a legislative body to do so unless the record evidence shows there is no other reasonable use of the subject property which was not the case here. Ames 7: Town of Painter, 389 $.E.2d 702 (1990) (Justice Whiting dissenting); Board of Supervisors v. Allman, 211 $.E.2d 48 (1975), 7. __Intervenor incorporates by reference all points and authorities cited in his June 2, 2021 Brief and Supplemental Brief, and all other objections duly noted on the record at the May 25, 2021 hearing. 5David L. Konick VSB No. 17495 P.O. Box 57 ‘Washington, Virginia 22747-0057 Phone 540-937-5067 Counselor Intenenor