Letter to Editor: Smalleys Have No Interest in Salvation Army Land Deal

Having spent some of my youth in a small town, I appreciate how petty jealousies can sometimes be blown up into the most outrageous accusations but the latest allegation made against the Salvation Army and the Smalley’s is beyond bizarre.

The Smalleys do not now, never had and never will have, any interest in the Salvation Army subdivision.  Such an accusation is defamatory not only of the Smalleys but, more importantly to my office, the Salvation Army.

The Salvation Army is a public charity that does outstanding work living out the Gospel’s command to “take care of the least of these.”  The income from the sale of the lots will be used in those missions, just like the coins and bills placed into the red kettles this time each year.

To divert any of the assets of a public charity to the benefit of a private person, like the Smalleys, would be a felony known as “defalcation.”  Does anybody in Clarke County truly believe that a nationally renown public charity with a spotless record would ever engage in such activity?  If so, let them say so publicly (not in an anonymous comment) and bring proof.

As to the fascination with the address in Leesburg, the REMax office at that location closed 6 months ago and had no relationship to Mr. Steinmetz or any other member of the Clarke County Planning Commission or the Salvation Army.

That address is a 3 story office building. Mr. Showers office is on the third floor. He and I have been representing the Salvation Army for years.

The Salvation Army subdivision plat is not at that address.  As Mr. Russell wrote Ms. Bouffant on Noverber 3, the plat, is and has always been, in Mr. Russell’s office and any member of the public is free to examine that plat.  How Ms. Bouffault continues to say otherwise is a mystery.

If the public does look at the plat, they will see that, as required by State Code, the name and address of the owner is clearly identified in Notes 6 and 8: The Salvation Army.  The Deed Book and page in the Clarke County land records of the Deed from Mrs. Casey to The Salvation Army is cited also.  Those records are also open to the public.

Because of “Dillon’s Rule,” local government may not impose requirements on a landowner’s right to subdivide that have not been authorized by the General Assembly.  Contrary to the belief of some, Clarke County is not “a kingdom unto itself.”  It is, in the words of one judge, a mere administrative subdivision of the Commonwealth, subject to the limitations imposed on it by the General Assembly.

Since the General Assembly, through the State Code, already requires the ownership information on the plat that will be recorded in the County land records, why does Clarke County, unique among all the counties in Virginia, require that same information to be stated again in another document that is also recorded in the land records?

Why is the second question asked on the Consumer Disclosure statement the name and address of the registered agent of the owner?  Only one kind of person looks for that information, someone like me: an attorney who’s getting ready to sue someone.  That information is far more readily available at the State Corporation Commission website, by the way.  Why is Clarke County trying to make it easier to sue landowners who are going through the subdivision process?  Why is Clarke County providing possible litigants with potentially outdated information when accurate, up to date information is readily available at the State Corporation Commission website?  Why is Clarke County enabling litigation against landowners going through the subdivision process when our Va. Supreme Court has said 3 time in the last 6 years that no one can sue over a subdivision decision except the applicant? Is the County trying to foment frivolous litigation against subdividers?

After a subdivision plat is approved and recorded, if a lot line is changed or street alignment shifted, the State Code requires the lot owners to come back to the Planning Commission and get its approval for that change.

Does Clarke County insist on approving any change in the identity of the registered agent of a landowner who has subdivided their property?   The ordinance doesn’t say.

What if the telephone company changes it’s name; does Clarke County’s unique ordinance require the lot owners to come back to get a new Consumer Disclosure statement reviewed, approved and recorded?  The ordinance doesn’t say.

When the lots are sold to an individual homeonwer or to a homebuilder, will the Consumer Disclousre statement have to be changed, approved and rerecorded? The ordinance doesn’t say.

Is the listing of the utility providers a promise (covenant, representation or warranty) that there will never be natural gas service in the Salvation Army subdivision?  Can future homeowner’s sue the Salvation Army if the electric co-operative ever merges with another electric company?  The ordinance doesn’t say.

The problem with localities freelancing on subdivision requirements is that it creates uncertainty which is why conforming to the State Code is the safest route for localities to follow in processing subdivisions.

No the County cannot tell the Salvation Army, or any other land owner, to take a hike.  Subdividing your land is a right and local governments cannot prohibit subdivision nor can local government impose conditions on that right not authorized by the General Assembly.

After years of processing its subdivision plat, its time for the Salvation Army plat to be approved on December 2nd.

John W. Farrell, Esq.
McCandlish & Lillard, P.C.
11350 Random Hills Rd., Suite 500
Fairfax, Virginia 22030

Comments

  1. My Oh My –

    So much verbiage to say so little.

    But first, to respond to Mr. Farrell’s statement above “The Salvation Army subdivision plat is not at that address. As Mr. Russell wrote Ms. Bouffant on November 3, the plat, is and has always been, in Mr. Russell’s office and any member of the public is free to examine that plat. How Ms. Bouffault continues to say otherwise is a mystery.”

    A mystery? Really??

    So why does Mr. Farrell’s letter and attachment to the Planning Commission of Oct. 31st indicate, in response to the disclosure statements first question:

    Quote
    Question 6-A-l:
    The name and address of each person having a beneficial interest in the land proposed to be subdivided and the extent of such interest.

    Response:
    The name and address of the current owner are set out in General Note #6 on the plat: 305 Harrison Street, SE, Leesburg, VA 20175.
    As the Salvation Army is likely to sell off the house lots, this information is likely to change before individual homeowners buy a lot.
    Unquote

    The question does not ask about the ‘owner’, but ‘the name and address of each person having a beneficial interest in the land’. And in the response, there is no owner’s or any other name specified, and the Salvation Army is not located at that address.

    A somewhat muddled response to a straightforward question, wouldn’t you say?

    As for the remainder of Mr. Farrell’s rather bombastic letter, which is apparently trying to intimidate county officials with his veiled legal threats, I’m not sure he understands the extent to which he is publicly damaging his client’s good name.

    Since this entire matter began five years ago, the Army has yet to give the school board the contracted 71 acres (reduced from the original 200 acres promised), and now here they are, accusing Clarke County of “freelancing on subdivision requirements” because the Planning Commission is merely trying to get them to comply with our normal ordinances.

    Mr. Farrell, not living up to your commitments (71 acres) and insulting the Planning Commissioners (‘freelancing’) while trying to avoid county ordinances is not a good way to endear yourself to county residents.

    Another approach, such as complying with the permit requirements, might be more beneficial to your quest.

    RRB

    • Debacle Watcher says:

      Robina – hasn’t anyone told you that you have rendered yourself irrelevant! And that’s the nicest thing I can think of to say about that.

  2. Roscoe Evans says:

    RE: The “contracted 71 acres”

    Contracts for the sale, gifting, or transfer of land must be reduced to writing to be legally binding. So how about producing that writing?

    The Salvation Army is a religion and a charity. It has no duty to pay for the education of Clarke County’s children by making an unrestricted gift of its own assets.

    This demand for land makes no sense.

    The Salvation Army ought to retain Georgetown University’s lawyers, and put Clarke County’s phoney claims for excessive legal paperwork permanently in the circular file, where they belong.

    • Right Winger says:

      If I remember correctly, the Casey Will stated that the Salvation Army would get 400 acres, provided they give half of it to the School System.

    • Mr. Evans –

      As I have been unable to find your name (is it your real name?) in either the phone book or in the Clarke County land records, I am unable to mail you a complete copy of the 71 acre contract dated November 4th, 2005, between the Salvation Army and the CCEF, which was subsequently transferred by the CCEF to the School Board in 2006.

      The document is available on this blog for your (and everyone’s) inspection here: http://www.clarkedailynews.com/wp-content/uploads/2011/11/71_Acre_Ct_Army-CCEF-SB_11-4-05.pdf

      FYI, in spite of the fact that the prior school board had complied with all permitting requirements, when the 71 acre deed was requested, – first by them in 2007, subsequently by the current board in both 2008 and this year – the Army to-date has ignored the request.

      I also have a copy of the original 200 acre gift contract between the Army and the CCEF, dated in April 2005. If you will provide your mailing address, I will be happy to send you all relevant documents.

      RRB

      • Debacle Watcher says:

        Thanks Robina:
        Paragraph 3(a) of your linked agreement seems pretty clear, i.e. if a school is not constructed within 2 years the property goes back to the SA.

        When you were elected everyone knew you wanted to kill the deal to build a school there, so no-one bothered to further the transaction. It would have to reverted back to the SA before now anyway.

        So what exactly is your BIG BEEF? Or is it just more irrelevant droning?

  3. Say What? says:

    Difficult read. Makes no sense unless you follow the situation. Do people not have much of a life? The general public do not keep up with who says what. Nor do we care. We just see bickering and finger pointing. I can say WE DO NOT want a Salvation Army Facility here in Berryville. Especially near the schools. Drive by ANY of their facilities and look in nearby woods at the debris and tents.

    I think the Salvation Army should SELL all of the land and take the money for their red kettle. Get a tax break by donating the building rights to Va Outdoor Foundation, Parks and Rec could use more property – need football fields (since everything in Chet Hobert Park is baseball or soccer), lacrosse, dog park, animal reserve…. lots can be done with it. Humane Society may be interested. Why do they insist on chopping up a needed farm? That alone seems foolish. There is NO demand for building lots right now and won’t be for many years. So why the issue? The lots that do sell are giveaways.

    The rest of us in this county have to abide by the sometimes long time frame, ridiculous & expensive guidelines so why not the S.A.? I have been told since 1980 when it passed, that the Sliding Scale Zoning in this county was illegal. Maybe this Loudoun Attorney is the one to sue and win. Have at it.

    We all know the county Supervisors and Zoning is a dictatorship. Many are large landowners or persons that inherited/married into wealth and status. But they still do a good job for what they are given. They care. Maybe not perfect but who is? Loudoun sure as heck is not. I think the Supervisors AND the School Board shortchange the schools which is why the real talent goes elsewhere. Why 2 schools share 1 principal, year after year. To save money. To make do. Not to be the best. Not putting the kids first. Our future first. Berryville Primary is all but forgotten. Look how many parents have began to home school in the last few years. Even BPS assistant is also the assistant at Cooley. Check the web site. So they have NO dedicated Principal or Assistant Principal. That is under Robina’s watch. And Stalen.

    Robina, thanks for your service but your time has come. Please just stay out of it and let others handle it. You do not seem to get along with anybody that counts. Maybe new blood can break the stalemate and communication problems (like mountain goats locking horns on every little item, and large items) that you failed to do. Thanks for the try. Enjoy your big farm in Boyce.

  4. Say What? says:

    What do the Smalley’s have to do with anything? Why is that the headline?

  5. Robert Johnston says:

    Going back to the Springsberry property which the Caseys were going to donate to SA – The SA has never been forthcoming and the present approach by Mr, Farrell does nothing to bolster confidence in their ultimate aims. The overall tone of this letter from Mr Farrell is certainly not lawyerly – more like he would rather change the subject. While acknowledging the good works done by SA, in situations like this they have a history of acting in a heavy handed manner.

  6. Because I Care says:

    We certainly do not have a need for another subdivision in Clarke. The ones we have now have plenty of available properties.

    How about a self-sustainable vocational-technical center for the region? One that not only offers trade and other technical training to area high school students in Clarke, Frederick, Jefferson and Warren counties, but also is open to adult learning programs at night. Further, the public can be allowed to drop off their cars, appliances, equipment, computers etc for repair at minimal cost so that the students can learn hands-on. Oh, such big dreams in a small-minded county!

  7. Great idea, Because! Lots of good uses including Future Farmers of America, Virginia Tech, UVA, and many others. I know her intent was to go to the SA to benefit them, but they don’t need the land. They need the money. Sell it as it sits and be done.

    Drive down Springsbury and see the skeleton of a neighborhood with 1 single home completed on it. (Sup. Weiss area) Warfield has county lots. Nichols has county lots. Too many to name. Some have been sitting so long the signs are disintegrating. Nothing says Welcome to Clarke better than vacant partially finished chopped up lots. No surprise – you still can’t get a modern necessity like high speed internet in most of the county (especially Sup. Byrd’s area) in 2011! But I am sure the county would love to get all the fee’s tied to subdivide anything here. It is grossly expensive and the soil/environmental studies alone will break the average person.

  8. just the facts..PLEASE says:

    I think he would like Clarke to be more like FAIRFAX!!!….

    how did THAT work out?