The latest chapter in a long running series of disputes might soon be resolved
Last Tuesday, May 25, Rappahannock County Circuit Court Judge Jeanette Irby heard evidence in the civil case brought by plaintiff John Cappiali, an Amissville contractor, against Rappahannock County over a series of disputes with local government officials for nearly five years. Cappiali is appealing the decision by the Rappahannock County Board of Supervisors to deny a special exception permit for a contractor’s yard.
Cappiali’s attorney, William Ashwell, presented his client’s assertion that the county’s decision in March 2020 to deny Cappiali’s special exception permit to operate a contractor’s yard was “arbitrary and capricious.” And not only that, Ashwell also argued that Jack Atkins, a part-time county building official and Cappiali’s neighbor across the four-lane Route 211, has been harassing his client.
The hearing purportedly went on for seven hours and did not conclude — a date for closing arguments has yet to be set.
This is the third legal battle involving the county for Cappiali. While he is the plaintiff in this most recent suit, he is the defendant in a civil case brought against him by Atkins for allegedly failing to comply with county ordinances as well as the defendant in a criminal misdemeanor case brought by the county alleging that Cappiali has construction equipment on his property without the requisite permit. However, were Cappiali to be granted the special exception permit for a contractor’s yard which the county has heretofore denied him, then the misdemeanor charge would be voided.
A long story
The backstory is long and tortuous. Since 2016, Cappiali and his business partner Joseph Long received three notices of violation from the county requesting that they clear the Lee Highway property of heavy machinery and construction apparatus. The property, zoned agricultural, is home to Cappiali’s contracting business and hay operation. Cappiali was issued violation notices for “scrap heaps … parking of not more than one
commercial vehicle per occupant/operator… inoperable vehicles … [and] outside e storage (contractors yard).”
In 2018, Atkins and his attorney David Konick sued the county for failing to enforce the zoning ordinance and Cappiali for failing to comply with it. The county was released from the case, leaving Cappiali the sole defendant. In this most recent case, Cappiali alleged that Atkins harassed him on the government’s clock several times, once entering the property and violating a no-trespass order and on multiple occasions taking photos from the property line.
Meanwhile, in an effort to rectify the situation with the county, Cappiali said he dumped the trash and scrap metal for which he had been issued two violation notices and obtained inspections and licenses for the “junk vehicles” that had been the subject of the third violation. The final violation was for the storing of construction apparatus without a permit for a contractor’s yard.
On January 25, 2019, Cappiali filed an application for that permit. On January 29, the county obtained criminal warrants for Cappiali and Long for those four violations.
In her staff report, which was presented to the Board of Supervisors for their review of Cappiali’s application on March 2, 2020, Zoning Administrator Michelle Somers wrote that three of the four outstanding violations had been resolved “except for operating a contractor’s yard without a permit.”
The Planning Commission, which had heard the application in November of 2019, recommended denial of the permit “based on the economic impact, changes to the residential rural/agricultural area and the impact on tourism with the location at the scenic entry to the county,” Somers wrote. “This was unanimous.”
Cappiali’s application was also unanimously denied by the county’s board of supervisors, but for different reasons. They argued that Cappiali’s yard failed to comply with certain general standards in the county code and with Principle 7 of the county’s comprehensive plan, which maintains that the county should “promote only economic growth that assists in maintaining our existing balance and is compatible with the environmental quality and rural character, and does not adversely affect active farm operations, forestry operations, residential neighborhoods, the tourist industry, and the county’s fiscal stability.”
During discussion of the application, Supervisor Keir Whitson, who made the motion to deny, argued: “The amount of equipment there, the type of equipment there, even if contained within a contractor’s yard, to me, in the aggregate, is mismatched with the business activities and that does concern me … I’m still left with the distinct impression that with the number of inoperable vehicles, containers and other equipment that do not directly relate to your core business activities … that a contractor’s yard doesn’t solve the problem that this is … ultimately, more a junkyard, which is not a permitted use in a zoned agricultural area.”
Day in court
Hearing that the county denied Cappiali’s application on the basis that it was not congruent with the comprehensive plan, a document that is not legally binding, Judge Irby was not convinced that the county had not acted arbitrarily. What’s more, the judge said that the timing of the issuance of the misdemeanor charges only three days after Cappiali filed his special exception permit could be construed as injurious to the plaintiff.
David Konick, Atkins’ attorney, and Art Goff, the county attorney, maintain that no wrongdoing took place and that the county in no way attempted to harass or injure Cappiali, and defended against the notion that the supervisors’ decision to deny Cappiali’s special exception permit was arbitrary and capricious.
The court was originally scheduled to reconvene on June 9 for closing arguments but the judge was unavailable. A new hearing date will be scheduled soon.
Editor’s note: A version of this story that appeared in print mistakenly reported that Cappiali and Long were defendants in this case. In fact, Cappiali and Long were the plaintiffs. Several other mistakes have been corrected and are reflected above.