Developers taking over Hanover apartments are fighting in the state appeals court after their lawsuit was dismissed

A lawsuit over a rejected Hanover housing project is heading to the state appeals court after a lower judge sided with county supervisors' rejection of the project nearly a year ago.

Attorneys for local developer Larry Shaia and project associate Jesse Lennon, whose proposed Summerlyn apartments would have been the first rental housing community for 55-year-olds in the county, filed a notice last month that they will appeal the judge's decision to the Virginia Court of Appeals .

The notice followed Hanover County Chief Judge Victoria Willis' Aug. 9 order dismissing the case with prejudice, meaning the case could not be appealed or reheard at the county level.

Willis' order referenced arguments made by Hanover's counsel throughout the proceedings, which have unfolded since its filing last December.

A month before the lawsuit was filed, the Hanover board had voted 4-3 to reject Summerlyn, a $27 million project that would have added 97 age-restricted housing units next to Shaia's Cambridge Square Apartments at 7147 Mechanicsville Turnpike.

The complaint argued that supervisors who voted against the apartments made an error in calculating the project's allowable density and relied too heavily on recommendations in the county's comprehensive plan, which was approved two months before the board's vote – and two months after Shaia and Lennon submitted their application – had been updated for a rezoning of the project.

Developer Larry Shaia addresses the board before the November vote. (screenshot)

The update effectively changed the density calculation for such projects from a gross acreage to a net acreage method, limiting the number of units to 81 due to protected wetlands on the property. Shaia has claimed that prior to this change, Summerlyn was proposed based on previous approvals for Cambridge Square and other gross acreage developments.

The lawsuit described the comprehensive plan as an advisory document, arguing that the board is not constrained by the plan's recommendations and that state law requires zoning decisions to be based on a locality's police powers, such as whether a development will have negative impacts on public health and security and general well-being.

However, in his motion to dismiss the case, Hanover argued that the project had been adequately reviewed and that the board's rejection was reasonable.

“Compliance with a locality’s comprehensive plan is one of the matters that the Code of Virginia requires local governing boards to consider when considering a rezoning application,” county documents state. “Since the legislative record…clearly shows that the committee's actions were appropriate and the decision was quite controversial, the…complaint must be dismissed in its entirety.”

Shaia and Lennon claimed in their response to the county's filings that the comprehensive plan is a guide, not a rule, and that the density calculation in question was changed after their rezoning application was submitted to the county.

“The board erred in law when it concluded that the master plan limited its ability to approve plaintiff’s application,” their response said. “A comprehensive plan has no force of law – it is just a guideline.”

They also noted that the Planning Commission had previously voted 7-0 to approve the rezoning and that county planning staff supported the project. Shaia had previously stated that reducing the density to 81 units would make the project unfeasible.

O'Hagan Meyer attorneys Thomas Wolf and Joseph Rainsbury represented Shaia and Lennon in the case and are handling their appeal, which was filed Sept. 10 in state court. A hearing has not been scheduled.

When reached Monday, Wolf declined to comment beyond court filings.

Hanover District Attorney Dennis Walter represents the board, along with Assistant District Attorney Rebecca Randolph and Assistant District Attorney Leah Han.