ABINGDON, Va. — Washington County officials are seeking a text amendment in a zoning code to allow the town of Abingdon’s vacant Kmart to possibly become a courthouse prior to an upcoming referendum on Nov. 5.

But the town’s legal counsel Cameron Bell said the town code that allows a request for a text amendment is actually a violation of the Dillon Rule and is “void,” Bell wrote in a Friday letter to County Attorney Lucy Phillips.

“When a conflict exists between state law and municipal law, state law must prevail,” Bell wrote. “An ordinance that conflicts with a state law of general character and state-wide application is invalid.”

In a July 26 letter sent to County Administrator Jason Berry, Town Manager Jimmy Morani wrote, “If the county intends to move forward with relocating the courthouse to this property, it will require a text amendment to the zoning code to permit a courthouse in the B-2 zoning classification.”

Zoning text amendments may only be initiated by either the Planning Commission, acting on a motion, or by the Town Council through a resolution, Bell wrote in his four-page letter.

Bell noted the Town Council plans to discuss this matter at an upcoming meeting.

That will likely occur during the Sept. 18 work session, according to Morani.

Closed session

Tonight, the Board of Supervisors is slated to meet in a closed session with County Attorney Lucy Phillips at the board’s regular meeting in Abingdon, to discuss the zoning matters concerning the Kmart.

“It’s legal advice, and they’re making decisions about matters that may involve disputes with others, discussion with others, negotiations, lawsuits, any number of things,” Phillips said Monday,

Phillips said the supervisors are going to “make decisions” on Tuesday. “And when you have controversy, it’s often best to have discussions in a context where people in opposition are not advised of what you see as strengths and weaknesses of the situation.”

Unique situation

Berry’s request for a zoning text amendment — sent to the town on Sept. 1 with a non-refundable application fee of $75 — was prompted by the “unique situation” of the Washington County Board of Supervisors voting on Aug. 5 “to place the issue of moving the county courthouse in a referendum on the Nov. 2019 ballot,” according to Berry’s application.

If approved, Berry wrote, “The courthouse would be moved to a renovated (former K-mart) building located off Towne Centre Drive.”

Town code, however, says a courthouse is only allowed in the Old and Historic District, where the present Washington County Courthouse is located, said Morani. 

A courthouse is not permitted in the town’s B-2 General Business District, which is how the shopping center where the old Kmart is located is zoned, according to Bell’s letter.

“Right now, putting a courthouse in an area that is shown on the town’s land-use map as commercial would be contrary to good planning practices,” said Morani, who suggested such talks between officials “should have taken place six months ago, prior to the issue being placed on the ballot.”

At this point, Morani said, county officials could seek a zoning map amendment, requesting that a courthouse be allowed in any B-2 General Business District.

“It would be referred to the Planning Commission, and they would make recommendations to the Town Council,” Morani said, adding, “The Town Council will not approve any zoning amendment — text or map — that would allow a courthouse in the B-2 zoning district.”

If the referendum passes, that still does not mean the courthouse can be moved, according to Morani.

“You can’t have zoning by referendum,” Morani said. “There’s no legal basis for that. The town has legal authority to control zoning and land-use within its corporate limits.”

‘Consistent’

Berry’s application calls this proposal an “adaptive reuse” of the Kmart building, which is owned by Marathon Realty Corp., an affiliate of K-VA-T Food Stores Inc., the parent company of Food City.

Stephen Spangler, Marathon’s representative, is also named on Berry’s application.

“Courthouse use is consistent with B-2 allowed uses (including those currently existing in immediate vicinity) and would have no detrimental impacts to surrounding property as it pertains to noise, light, traffic, or other suggested impacts,” Berry wrote.

Abingdon Town Council is, still, not expected to approve any rezoning for the property, Morani said.

“The only avenue is for the town to amend its zoning code. And we’ve stated by resolution that the Town Council is opposed to that,” Morani said. “If this process were to continue, the ultimate end result is the Town Council would vote against it.”

The Planning Commission could make a motion to initiate the process for a text amendment, Morani said. “But per statute — they are not legally required to consider an application for a text amendment.”

Amending the zoning code is what Morani calls “a legislative act. And there is no recourse for legislative decisions made by the Town Council. The Town Council decisions are final. It can’t be appealed, unless they felt the law was unconstitutional.”

In that case, if the referendum passes and the Kmart property is still not zoned for a courthouse, the county could potentially sue the town.

“Anyone can sue anyone,” Morani said. “But I think the town can’t be forced to change its zoning against its will, especially based on a referendum for which a majority of the voters don’t reside in the town.”

‘What will be done’

Questions on relocating the courthouse have also been raised by the Economic Development Authority of Abingdon in a Sept. 4 letter addressed to Berry from the board’s representative, Kenneth S. Shuman.

“What will be done with the existing courthouse once it is abandoned? The county’s track record of abandoning large buildings in downtown Abingdon would suggest it will likely stay empty,” Shuman wrote.

The supervisors did agree — with a resolution passed on Aug. 27 — to care for the courthouse in perpetuity.

“It is simply unrealistic to say the courthouse will be put to good use once it is vacated. The most likely scenario is that it will quietly deteriorate until it becomes an eyesore and hazard to public safety,” Shuman wrote.

The town’s EDA has also requested an opportunity to verify the county’s budget numbers for construction costs of a new courthouse and asks why public proposals for a new courthouse were not made.

“Moving the courthouse will leave an abandoned property in the heart of Abingdon, while occupying a viable commercial space which will no longer generate tax revenue,” Shuman wrote. “Has the county accounted for this forgone tax revenue in their calculus?”

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jtennis@bristolnews.com | 276-791-0709 | @BHC_Tennis

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