Part-time county em­ployee files law­suit against county for al­low­ing al­leged junk­yard

Rappahannock News - - FRONT PAGE - By Patty Hardee Spe­cial to the Rap­pa­han­nock News

The Rap­pa­han­nock County Board of Su­per­vi­sors has been hit with an­other law­suit — this one from a part-time county em­ployee — that also names Zon­ing Ad­min­is­tra­tor Michelle Somers and County At­tor­ney Art Goff.

Jeremiah “Jack” Atkins, a part-time Rap­pa­han­nock County build­ing of­fi­cial, filed the com­plaint Oct. 12 in Cir­cuit Court ask­ing for en­force­ment of the county’s zon­ing or­di­nance against an Amissville cou­ple who live next door to him.

Atkins is ac­cus­ing the cou­ple, Beth and John Cap­pi­ali, of cre­at­ing an il­le­gal junk­yard while op­er­at­ing their two con­tract­ing busi­nesses, Capp In­dus­tries and Pal­adin Un­lim­ited LLC.

The suit charges that the Cap­pi­alis and their busi­nesses “have moved, caused or suf­fered to be moved a va­ri­ety of con­struc­tion ma­te­ri­als and other de­bris, used and in­op­er­a­ble con­struc­tion equip­ment and mo­tor ve­hi­cles

Sub­ject Prop­erty in will­ful and wan­ton vi­o­la­tion of Chap­ter 143 and 170 of the Rap­pa­han­nock County Code.”

And, he charges, they have con­tin­ued and even ex­panded that ac­tiv­ity de­spite hav­ing been served with three letters of vi­o­la­tion from the county since Oc­to­ber 2016.

In ad­di­tion to the vi­o­la­tions, the com­plaint reads, “the un­law­ful col­lec­tion of junk, refuse, con­struc­tion ma­te­ri­als, and in­op­er­a­ble equip­ment and ve­hi­cles and other garbage at or on the Sub­ject Prop­erty is vis­i­ble from the Pe­ti­tioner’s [Atkins] prop­erty, con­sti­tutes a com­mon law nui­sance, and den­i­grates and de­pre­ci­ates the value of Pe­ti­tioner’s prop­erty.”

Also named in the suit is Joseph Long of Gold­vein, who owns the prop­erty the Cap­pi­alis lease on Lee High­way (U.S. Route 211).

In the first no­tice of vi­o­la­tion let­ter to Long, dated Oc­to­ber 31, 2016, then-County Ad­min­is­tra­tor and Zon­ing Ad­min­is­tra­tor Deb­bie Keyser states that she had re­ceived a com­plaint about ac­tiv­i­ties on his prop­erty. Af­ter con­duct­ing an in­ves­ti­ga­tion, Keyser wrote, she or­dered Long “to bring your prop­erty into com­pli­ance with our Zon­ing Or­di­nance” which does not al­low “a junk­yard/ auto grave­yard, junk or in­op­er­a­ble ve­hi­cles, solid waste, scrap heaps or refuse piles.”

She also noted — as does Atkins’ com­plaint — that the Cap­pi­alis were op­er­at­ing their busi­nesses with­out hav­ing ob­tained a spe­cial ex­cep­tion per­mit from the county al­low­ing them to run a con­trac­tor’s yard in an agri­cul­tural zone.

A sec­ond no­tice, dated Fe­bru­ary 15, 2018, to Long from Somers was not picked up at the post of­fice or de­liv­ered. Somers sent a third no­tice, dated April 23, 2018, which stated, as had the previous no­tices, “Your fail­ure to com­ply with these or­ders will re­sult in re­fer­ral of the mat­ter to the County At­tor­ney, and the County may take any other re­me­dial or puni­tive ac­tions al­lowed by law.”

And yet, as Atkins’ suit charges, not only did Long and the Cap­pi­alis not com­ply, but other than the letters, “no ac­tual en­force­ment ac­tion, civil or crim­i­nal, has been taken [by the county] to ter­mi­nate the vi­o­la­tions.”

On Sept. 18 of this year, Atkins’ at­tor­ney David Kon­ick, wrote a let­ter to Somers and County Ad­min­is­tra­tor Gar­rey Curry ad­vis­ing them that Atkins may sue the county if of­fi­cials did not take en­force­ment ac­tion within 14 days.

Curry re­sponded by email the next day: “I re­ceived your let­ter (email and fax). Note that when Michelle and I met yes­ter­day af­ter­noon we dis­cussed the need to in­spect the site with re­spect to its po­ten­tial cur­rent use as a ‘con­trac­tor's of­fices, shops and ma­te­ri­als stor­age yard,’ which would re­quire a spe­cial ex­cep­tion in an Agri­cul­ture zon­ing district. You sug­gested sim­i­larly in your let­ter. She will be work­ing on that re­view based on what is in the file, on­line, and on­site.”

“On Oc­to­ber 2, 2018,” wrote Kon­ick in an email Tues­day, “I fol­lowed-up on my Septem­ber 18th let­ter to Mr. Curry, in­di­cat­ing that the 2 week pe­riod had ex­pired and in­quired what, if any, ac­tion the County in­tended to take. He stated in an Oc­to­ber 3rd e-mail, ‘The County has not, as of this time, reached a con­clu­sion as to the ‘ac­tion the County has de­cided to take.’"

In the Tues­day email, Kon­ick said he had also not heard from any of the other named par­ties, “ex­cept to the ex­tent I have been ad­vised Bob Mitchell will be rep­re­sent­ing the County (not Art Goff). The County was served on Mon­day, Oc­to­ber 15th so they have 21 days to file re­spon­sive plead­ings which has not ex­pired. The other Re­spon­dents were also served ei­ther Oc­to­ber 15th or Oc­to­ber 16th.”

The Cap­pi­alis did not re­spond to re­quests for com­ment about Atkins’ com­plaint.

How­ever, at the Sept. 5th BOS meet­ing, John Cap­pi­alli com­plained that “I’ve been hav­ing a prob­lem with some folks, in­clud­ing [Jack­son district su­per­vi­sor] Mr. [Ron] Fra­zier here in re­gards to my prop­erty. Mr. Fra­zier has been in­volved in fly­ing — or his con­stituent, along with Mr. Fra­zier, and Mr. Kon­ick — has taken to fly­ing drones over my home and tak­ing pho­to­graphs.”

The “con­stituent” was later iden­ti­fied as Atkins.

Fra­zier in­ter­rupted Cap­pi­ali to deny the ac­cu­sa­tion. Cap­pi­ali claimed to have emails con­firm­ing Fra­zier’s in­volve­ment. In a later email, Fra­zier wrote that Cap­pi­ali “com­pletely mis­con­strued the emails . . . I can­not say much more about this be­cause I sent his writ­ten pub­lic com­ments to me (6 Sept.) to the Sher­iff be­cause he made what ap­pears to be a threat to me, and also while speak­ing to a mu­tual ac­quain­tance he ac­tu­ally threat­ened me.”

Two days af­ter the BOS meet­ing, Curry con­firmed by email that “there is an ac­tive in­ves­ti­ga­tion” into the al­leged [drone] ac­tiv­ity. A call to the sher­iff’s of­fice seek­ing com­ment was not re­turned.

Asked if he had been in­volved with this ac­tiv­ity, Kon­ick re­sponded in an email Tues­day that he was not.

“It is my un­der­stand­ing,” he wrote, “that the drone pho­tos were taken last win­ter, long be­fore my in­volve­ment in the case, and that the drone never ac­tu­ally over­flew the sub­ject prop­erty, but only over U.S.Route 211.”

Try­ing to hold county of­fi­cials ac­count­able is not a new ac­tiv­ity for Kon­ick. Two other clients of his be­sides Atkins have suits pend­ing be­fore the county.

About the Atkins com­plaint, Kon­ick emailed Tues­day, “This case is but the lat­est in­stance over the past few years where County Of­fi­cials have not taken ac­tion to en­force our Zon­ing Or­di­nance or have twisted the Or­di­nance into a pret­zel to avoid en­forc­ing its clear in­tent when ‘the rich and fa­mous’ vi­o­late it. Not only is this an in­sult to those of us who have spent a life­time work­ing to keep Rap­pa­han­nock County from be­ing de­vel­oped, den­i­grated and des­e­crated, it sends a mes­sage to would-be vi­o­la­tors that there are no con­se­quences for brazenly vi­o­lat­ing our land-use laws, even af­ter for­mal no­ti­fi­ca­tion of vi­o­la­tions. This is ut­terly ir­re­spon­si­ble, and it must stop.”

A mo­tion for tem­po­rary in­junc­tion will be heard Mon­day, Oct. 29 at the court­house in War­ren­ton. The mo­tion asked the court to re­strain the Cap­pi­alis from “op­er­at­ing a con­trac­tor’s of­fice or stor­age yard . . . and from mov­ing, de­posit­ing or stor­ing any ad­di­tional scrap ma­te­ri­als or con­struc­tion ma­te­ri­als, con­struc­tion equip­ment, ma­chin­ery or ve­hi­cles, or other junk” on the prop­erty.

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