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NEW KENT – The developer of the proposed Dunham subdivision has filed a lawsuit against the Board of Supervisors for denying its rezoning application.

Godsey Properties, Inc., of Richmond, is claiming that Supervisors did not have enough valid reasons for voting down its rezoning proposal for Dunham in December. The lawsuit was filed in New Kent Circuit Court on January 13. Godsey is asking that a judge overturn the Board’s decision.

Originally proposed in February 2008 by Godsey, the application requested that the county rezone approximately 131 acres east of Tunstall Road (Route 612) from A-1 (Agricultural) to R-1 (Single-Family Residential), so developers could build a 113-lot open space cluster subdivision (Dunham).

Supervisors voted 5-0 on December 14, 2009 to deny the proposed property’s rezoning application and plans for Dunham, citing the reasons as student population, insufficient cash proffers and the lack of need for another subdivision.

According to the January 13 complaint, the Board of Supervisors did not give sufficient reasons for denying the proposal, and that the property’s existing zoning classification, A-1 (Agricultural) is inconsistent with the permitted uses of surrounding properties.

The complaint states that Godsey Properties feels that “in the light of the goals and objectives of the County’s Comprehensive Plan, it is unfair and discriminatory for the County to limit the property to agricultural use given that the county rezoned adjacent and otherwise identically situated properties as R-1 (Single-Family Residential).”

Godsey Properties stated that the Board’s refusal to approve the rezoning has resulted in a “de facto moratorium,” a technique used by local governments to limit the extent of change while still being able to create and adopt a new plan or zoning ordinance outside of its uses.

The suit also claims that the board is in violation of the Dillon Rule, and Godsey’s right to equal protection.

The Dillon Rule puts into question the extent of local government’s power.

“The Board of Supervisor’s denial of Godsey’s Rezoning/Ordinance Change Application was arbitrary, capricious, discriminatory, unreasonable, and without reasonable relation to the public health, safety, and general welfare of the County’s citizens,” Godsey claims in the suit.

Lastly, Godsey is asking the courts to reverse the board’s decision and approve the rezoning/ordinance change as presented in December.

Interim County Attorney Michele Gowdy submitted a response to the lawsuit (on behalf of the Board of Supervisors) on February 9 to the Circuit Court.

In the response, the Board denies Godsey’s allegations.

According to Gowdy, the board is now waiting for Godsey’s response.

A trial date has not been set.

Previous to the application’s denial, surrounding residents and government officials expressed their discontent with the application during the board’s public hearing (December 14) and both Planning Commission public hearings (held September 21 and October 19).

Because Dunham would be located between two existing subdivisions, Deer Lake and Kenwood Farms, and near Greenwood Estates and Essex Hills, residents were concerned mainly about the increased traffic through the neighborhood streets through “stub roads” and also the lack of need.

Dan Caskie, P.E., of Bay Design Group, who helped with survey and land planning, explained to the Supervisors and residents that although there was concern about traffic going through the other subdivision’s streets, stub roads are encouraged by the Virginia Department of Transportation (VDOT).

A VDOT traffic study also concluded that the projected traffic growth would not require any additional improvements, aside from a turn lane into the development.

Kentwood Farms resident Tina Maxim addressed the applicant’s claims that there is a lack of workforce housing in the county at the board’s public hearing on December 14.

Work Force Housing is defined by Godsey Properties as having a household income of $72,000 or less. The 20 1,200-1,400 square-foot workforce homes (20 percent of the project) were intended to give “county workers,” such as teachers, police officers, fire fighters, nurses, and other “essential workers in the community,” a place to live for around $200,000.

According to Maxim, she called real estate agents and researched homes in the county that fit Godsey Properties’ definition of workforce housing.

Homes ranging from 1,300-1,4000 and selling for $200,000 are all over the county, she said.

“You can get a 1,400 square-foot home at the Oaks for $179,950,” she said.

Maxim also found two different styled homes in Brickshire that meet or exceed the Dunham project’s proposal.

In Brickshire, a 1,680 square-foot home can sell for $170,000 and a 1,900 square-foot home can sell for $190,000.

“There are 37 homes up for sale that are under 300,000 and are 900-3,600-square feet in size…We definitely do not need this home development,” she said.

Godsey Properties estimated that with an average of 2.6 people per home (0.5 children), Dunham would have added approximately 15 students per year, with a total of 50-60 students.

Cook added that the School Board budgets for a 1.5 percent increase in school population every year, and that so far it has been steady, except for the current school year, when it dropped.

“Fifteen additional students will fund an additional teacher,” he told the board.

Cooked added that 0.5 children would cost the $2,000 each in the operational budget.

Another concern that the Supervisors discussed in December involved the water system.

Although Cook stated that the experts told Godsey Properties that Dunham would have enough water supply, resident Pam Scholla presented the board with a correspondence she had with the public utilities.

The letter stated that if all the surrounding subdivisions, including Dunham hooked into the same water utilities, there would be an insufficient water supply.

Despite staff’s approval of the project, the board voted to deny the proposal.