Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, January 15, 1993 TAG: 9301150150
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: MONTVALE LENGTH: Long
BEDFORD'S ZONING METHOD CHALLENGED
AFTER THREE YEARS of controversy, Bedford County's ground-breaking zoning ordinance, known as LUGS, is facing its first serious challenge - a lawsuit contending that the measure is unconstitutional.\ Jim Campbell doesn't really want to take on Bedford County's LUGS zoning ordinance or, for that matter, the U.S. Constitution. He just wants to sell used trucks and parts.
But a complicated dispute with the county over his salvage yard operation in Montvale has led Campbell and his partner at J.C. Sales Inc., James Bowman, to file a lawsuit challenging Bedford's three-year-old Land Use Guidance System - or LUGS.
The lawsuit is the first court test the controversial zoning measure has faced.
Campbell and Bowman contend the Board of Supervisors unfairly denied them a permit under LUGS to expand the truck sales and parts business they began in 1990.
Their rezoning application scored 135 points on the LUGS scoring system, which rates each request according to its closeness to other development and related land-use factors.
The score is well over the 100 points the county prefers on projects.
However, a high score does not prohibit the supervisors from rejecting an application if there is citizen opposition to a rezoning, as there was to the J.C. Sales expansion.
Some Montvale residents objected because Campbell and Bowman made their LUGS application only after they already had expanded the salvage yard - without proper county approval.
Residents also were upset by the unsightliness of the operation and its proximity to Montvale Elementary School, located next door on U.S. 460. Some feared schoolchildren would use the salvage yard as a playground.
Campbell and Bowman contended that proper fencing would deter children from playing on the trucks, and they could plant trees to screen the business from nearby homes.
Further, they said they didn't intentionally sidestep LUGS to expand their operation. They just got busy, business boomed and they found themselves with more trucks than they could contain on their small lot. Campbell admits that was wrong.
"We're not saying we're not at fault. We used land that we shouldn't have."
But he said the salvage yard is no worse than an equally unsightly automobile parts business 100 yards up the road or the vast gasoline tank farm that dominates the Montvale valley. He pointed to the 135 points scored on the LUGS evaluation and the designation, under LUGS, of the U.S. 460 corridor through Montvale as a growth area.
Campbell said the supervisors rightfully should have approved the expansion.
The supervisors, however, sided with the opposing residents and voted in September to deny the expansion.
At the time, Supervisor Gus Saarnijoki said the supervisors had to deny the expansion. Otherwise, he said: "Anybody out there in the county can go ahead and do any kind of expansion that they want and come to us nine months or one year later and ask for approval after the fact."
Saarnijoki added that he hated to see Montvale desecrated any further.
Campbell countered that Saarnijoki, whose district includes Montvale, and the supervisors might as well be saying: "They did something they shouldn't have, and we're going to show them who's boss."
He said that runs contrary to the spirit of LUGS, which was designed to be a fast, flexible, more objective and less political method of zoning. Campbell said zoning decisions - even under LUGS - still come down to whoever shouts the loudest.
Opponents to LUGS have long argued the same point.
Campbell and Bowman filed a lawsuit in Bedford Circuit Court, asking Judge William Sweeney to declare LUGS invalid - or, short of that, at least reverse the board's decision to deny the salvage yard expansion.
Their attorney, R. Louis Harrison Jr. of Bedford, says the supervisors ignored their own point system to send a signal out to other potential LUGS violators. "We passed the test, and yet we were denied," he said. "That hasn't been explained to me."
There seem to be no standards, he said. "It's just whatever they want to do."
Harrison says in the lawsuit that LUGS allows the supervisors to make "unfettered, arbitrary and capricious" decisions that deprive people from the use of their property as guaranteed under the 14th Amendment to the U.S. Constitution.
In addition, Harrison charges that there is no provision under state law that allows for a land-use system like LUGS. Bedford County's LUGS ordinance is the only one of its kind in Virginia.
It was modeled after a similar ordinance in Hardin County, Ky., which was successfully challenged and recently declared invalid under Kentucky state law by a Hardin County judge. That decision is being appealed.
Likewise, both Harrison and Bedford County Attorney Johnny Overstreet say the J.C. Sales challenge - no matter which way Sweeney rules - likely will be appealed, probably to the Virginia Supreme Court.
Overstreet is confident LUGS will hold up. When it was proposed, he said state Attorney General Mary Sue Terry reviewed the ordinance and concluded it didn't violate any state or federal laws.
He said the Hardin County ruling doesn't worry him either because Kentucky works under a different constitution than Virginia, and therefore an entirely different set of state provisions apply.
Harrison, of course, disagrees.
"I think it's a particularly damaging decision for the county," he said.
Sweeney is scheduled to hear the J.C. Sales case on March 19.
Meanwhile, further complicating the dispute is a previous LUGS permit that J.C. Sales was granted to open the business in 1990.
That permit was revoked last summer after co-owners Campbell and Bowman failed to provide the county a proper site plan required under LUGS. In addition, the permit was granted originally for used-car and truck sales, not for the salvage yard Campbell and Bowman ended up running.
Campbell said they misunderstood that permit, thinking it also allowed for salvaging and selling used truck parts.
Now they are having to reapply for their original permit - separate from the expansion application that is tied up in court - and they are changing their request to include the salvage part of the business.
All the while, they have continued to operate.
The county has filed charges against Campbell and Bowman for violating LUGS, but that action has been put on hold pending the outcome of their lawsuit challenging the LUGS ordinance.
Not surprisingly, Campbell just wants the dispute resolved, whether LUGS is overturned or not. His beef isn't really with LUGS anyhow. "We don't care if they have LUGS in this county, as long as they don't do things that are unreasonable," he said.
"All we want to do is operate a business."