Petition — Fleming v. Citizens for Albemarle, Inc.

| 7~ Supreme Court, U. &.~

FILED

—_

OCT 23 1978

a

IN THE

MIGHAEL R@DAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. 78-686

JAMES N. FLEMING

Petitioner

VS.

CITIZENS FOR ALBEMARLE, INC.

and

ALBEMARLE COUNTY TAXPAYERS, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL W. TUCKER

HILL, TUCKER & MARSH

509 NORTH THIRD ST.

RICHMOND, VIRGINIA 23219

GERALD G. POINDEXTER

304 WEST CARY STREET

RICHMOND, VIRGINIA 23220

Counsel for Petitioner

————— Lt

TABLE OF CONTENTS Page

Opinions below ....... 2 cece reese eee ee teens 1

pe a ee “

Questions Presented ......... cece reece ee retees 2

Statutory Provisions Involved ......--+ seer reese 2

Statement of the Case .......- ee eer eter eee reteee 3

REASON FOR GRANTING THE WRIT

The decision of the appeals court rests upon a strained

construction of the requirements of Federal Rule of Civil

Procedure 24 (a) allowing intervention as a matter of right in

certain cases and establishes a precedent which will have an

adverse consequence upon the orderly dispostion of civil

a 6

i oS oe 9

APPENDIX

(1) Order of the District Court for the Western District

of Virginia entered on April 26,1976 ....--..--: 11a

(2) Order and Opinion of the District Court entered on

August 11,1976 ......... eee ee eee entree: 8a

(3) Opinion and Order of the Fourth Circuit Court of

Appeals dated June 12,1978 ......--.sesee eee 3a

(4) Order of the Fourth Circuit Court of Appeals dated

July 24, 1976 denying petitioners’ request fora

rehearing and for astay of the mandate .......-- la

(5) Testimony of Alexander P. Janssen as taken by the

District Court on July 6, 1976... 2... eee eee eee 13a

TABLE OF CASES IN THE

Dobson, et al vs. Salvitti, et al SUPREME COURT OF THE UNITED STATES

Pe OL eo ok <6 ah dace WR ee 8

OCTOBER TERM, 1978

Hobson vs. Hansen

BAP TR TUE on cc ccc chicesacivecns 8 NO.

N.A.A.C.P. vs. New York

413 U.S. 345, 37 L. Ed.

Ng A eer eee ek Tee ee ee 9 JAMES N. FLEMING

United States Airlines, Inc. vs. McDonald

432 U.S. 345, 97 S. Ct., 2464, 53 L. Ed.

Se EE CUNEO sieht Se Le hee ae a 7

Petitioner

VS.

CITIZENS FOR ALBEMARLE, INC.

and

ALBEMARLE COUNTY TAXPAYERS, INC.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner James N. Fleming respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fourth Circuit

entered in this proceeding on June 12, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals reported at 577 F2

236 and the order of that court filed July 24, 1978 denying

petitioners request for a rehearing and for a stay of the mandate

appears in the Appendix. The opinion rendered by the District

Court for the Western District of Virginia on August 12, 1976

also has been made a part of the appendix.

JURISDICTION

The judgment of the Court of Appeals for the Fourth Circuit

was entered on June 12, 1978. A timely petition for a rehearing

en banc was denied on July 24, 1978 and this petition for

certiorari was filed within ninety (90) days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

(1) Was the evidence offered by the applicant intervenors in

the District Court proceeding on their application to intervene

sufficient to support the appeals court findings that the applicant

intervenors had demonstrated ‘‘such an interestelating to the

property or transaction”’ in suit that ‘‘the dispostions of the

actions” could “impair or impede” their ability to protect their

concerns?”

(2) Did the District Court abuse its discretion, as the Court

of Appeals found, in refusing to allow the intervention as a

matter of right under Rule 24(a)?

STATUTORY PROVISIONS INVOLVED

Federal Rule of Civil Procedure 24(a) and (c)

Rule 24. INTERVENTION

(a) Intervention of Right. Upon timely application anyone

shall be permitted to intervene in an action: (1) when a statute

of the United States confers an unconditional right to intervene;

or (2) when the applicant claims an interest relating to the

property or transaction which is the subject of the action and he

is so situated that the disposion of the action may as a practical

matter impair or impede his ability to protect that interest, unless

the applicant's interest is adequately represented by existing

parties.

(b) Permissive Intervention. Upon timely application anyone

may be permitted to intervene in an action: (1) when a statute

of the United States confers a conditiona! right to intervene, or

(2) when an applicant’s claim or defense and the main action

have a question of law or fact in common. When a party to an

action relies for ground of claim or defense upon any statute or

executive order administered by a federal or state aovernmental

officer or agency or upon any regulation, order, requirement or

agreement issued or made pursuant to the statute or executive

order, the officer or agency upon timely application may be

permitted to intervene in the action. In exercising its discretion

the court shall consider whe. ver the intervention will unduly

delay or prejudice the adjudication of the rights of the original

parties.

(c) Procedure. A person desiring to intervene shall serve a

moition to intervene upon the parties as provided in Rule 5. The

motion shall state the grounds therefor and shai! be accompanied

by a pleading setting forth the claim or defense for which inter-

vention is sought. The same procedure shall be followed when a

statute of the United States gives a right to intervene. When the

constitutionality of an act of Congress affecting the public

interest is drawn in question in any action to which the United

States or an officer, agency, or employee thereof is not a party,

the court shall notify the Attorney General of the United

States as provided in Title 28, U.S.C. 9 2403.

STATEMENT OF THE CASE

The background of this petition is somewhat unusual. In

March 1975, the petitioner James N. Fleming, along with a limited

partnership owned by several business associates of Fleming and

a closely held corporation in which Fleming owned a substantial

portion of the stock, brought suit Albemarle County, Virginia

as well as the members of its Board of Supervisors in their

official and individual capacities. The claim was filed in the

United States District Court for the Western District of Virginia.

Plaintiff’s asked for declaratory relief, injunctive relief and for

money damages. In short, ‘he claim of the plaintiffs was that the

county through its governing body had unjustly refused to rezone

approximately one hundred and twenty-five (125) acres valued

at more than one-half million dollars of county land owned by

them to allow construction of a subdivision because of illegal

and unconstitutional considerations of race. Fleming is Black,

and he had publicly announced upon filing his initial rezoning

application with county officials that he intended to develop a

racially integrated low or moderate income oriented subdivision

on the jands owned by himself, the partnership and his corpora

tion.

The Plaintiffs invoked the jurisdiction of the “reconstruction

era” civil rights statutes, i.e., 42 U.S.C. 1981, 42 U.S.C. 1983,

42 U.S.C. 1985, etc. The defendant's filed motions to dismiss,

Pleas of Immunity, etc.

The case was much publicized in one local press and it was on

the courts docket for more than fourteen months before it was

tried. Unsuccessful attempts were made to settle the matter of

which the court was aware. The matter came to trial on April 19,

1976 before the Chief District Judge sitting with an advisory

jury. The defendants were represented by the county attorney and

his deputy. All defensive motions objections and special pleas

were taken under advisement prior to trial. The defendants filed

an answer indicating that the developers’ application had been

rejected because of legitimate planning considerations. The

plaintiff’s case took nearly four days to present. The defendants

began their presentation of evidence but decided at a recess

after conferring in chambers with the judge and counsel for the

plaintiffs to settle the dispute by agreeing to a rezoning of the

property. First, it was agreed that an order he entered dismissing

the claim as to several past members of the Board of Super-

visors all of whom had been defeated in the November, 1975 ele

elections and who from the evidence before the court appeared

to have actively encouraged the rezoning of petitioner's land. Then,

a final dismissal order was fashioned and endorsed by counsel for

all parties remaining and entered by the court on Monday,

April 26, 1976, bringing the two and one-half year old, well

publicized controversy between the plaintiffs and the county

to an end. Appendix page 11a. Plaintiffs had originaliy sought a

a rezoning which would have allowed them to build at a density

of up to six and one-half (6%) units per acre. Under the terms

of the compromise, the property was rezoned for approximately

two and one-half (2%) units per acre. No damages, attorney fees

or costs were allowed as a part of the settlement. On May 6, 1976,

ten days after entry of the dismissal order and after the board

of supervisors had met to ratify the settlement, and to vote to

rezone the property, two predominately white citizen groups

filed motions in the District Court to intervene and for anew

trial. The applicants relied upon F.R.C.P. 24 (a).

The petitioner filed a motion to strike the applications on

procedural grounds Neither the county nor any of the individual

defendants made appearances in the intervention proceedings.

A hearing was set for July 6, 1976. Petitioner argued in the trial

court that the intervenors had not fully complied with the

procedural requirements of Rule 24 i.e., that no Answer as is

required by subsection (c) of Rule 24 had been filed with the

motion: that the attempt was not timely and that the pro-

posed intervenors had no legally protectable interest in the

controversy which would support intervention apart from that

represented by the county and the members of the Board cf

Supervisors. A full evidentiary hearing was had. Six persons

testified for the applicants, two of county board members who

had been parties to the April 26, 1976 settlement, the County

Attorney, his deputy and the presidents of the two citizens’

groups attempting to intervene. In their testimony both super-

visors suggested that certain comments made by the trial judge

in his discussions in chambers with the parties and their lawyers

had unduly influenced them to enter into the settlement

agreement which they did not feel was in the best interest of

the County. The two lawyers testified that they had communi-

cated to their clients comments made to them by the trial

judge which indicated that he intended to rule for the plaintiffs

and that if he did he also intended to award money judgments

against the members of the governing body in their private

capacities, if that was appropriate, and the lawyers testified

that they had urged the supervisors to settle with the plaintiffs

given the remarks of the judge.

The trial judge entered his own objection to the testimony

as to the chambers conference indicating that such testimony

was improper and would not be considered by him in deciding

the motions. The court allowed the testimony to be proffered

for the record. The entire testimony of the presidents of the

civic groups, Alexander P. Janssen and J. Kenneth Haviland,

is set out in the Appendix. That testimony establishes that

Albemarle County is a county of more than forty thousand

residents: that the two citizens groups had a membership of

approximately one thousand person; that the two groups had

kept themselves informed as to the progress of the controversy

involving Fleming, his fellow developers and the county and

that the membership of the two groups believed that a decision

to allow Fleming to develop the property, which is situated

in the area of a county reservoir, would have a detrimental

impact upon the ecology of that area and upon the public

water supply. When questioned as to what their specific

interests were the witnesses tended to be vague: see for

example Appendix page 25a. When questions as to their

knowledge of the nature of Fleming's original claim i.e., a claim

based upon race discimination, the witnesses were again vague,

although at the April 19, 1976 trial it had been clearly shown

that white persons had been given permits to develop in the

subject area residential units for greater population density than

the petitioner was seeking.

By opinion and order dated August 11, 1976 the District Court

found that the motions to intervene were not timely filed, that

the intervenors’ interest had been adequately protected; that

the settlement itself was fair and, therefore, that intervention

was not proper and should not be granted. See the opinion of

the District Court dated August 11, 1976, Appendix page 8a.

The applicants appealed. The matter was presented in oral

argument to a three judge panel of the Fourth Circuit Court

of Appeals on March 6, 1978. Only petitioner and the respon-

dants appeared in the Court of Appeals. In an opinion dated

June 12, 1978, the decision of the triai court was vacated, the

matter ordered remanded to the trial court with the directive

that the interventicn be allowed, that certain evidence not per-

mitted and not considered by the trial court be taken and

that a hering be had as to whether the settlement of April 26,

1976 should be set aside. The opinion also directed that an

‘‘answer’’ be required from the county with respect to the

validity of the settlement. The opinion went on to direct that

another District Judge be assigned to hear the case upon remand

in that the trial judge might be called as a witness upon remand.

See Opinion of the Court of Appeals for the Fourth Circuit

dated June 12, 1978, page 3a. Appendix. The petition for

rehearing was denied on July 24, 1978.

REASON FOR GRANTING THE WRIT

The decision of the Appeals Court rests upon a strained con-

struction of the requirements of Rule 24 of the Federal Rules

of Civil Procedure allowing intervention as a matter of right and

establishes a precedent which will have an adverse consequence

upon the orderly disposition of civil litigation.

The June 12, 1978 decision of the appeals court in this case

clearly breaks new ground with regard to the rights of proposed

intervenors under Rule 24(a) of the Federal Ruies of Civil Pro-

cedure and in the opinion of the petitioner, established an ex-

ceedingly dangerous precedent. A reading of the ieading cases

decided since the 1966 revision of Rule 24(a) shows clearly that

this Court favors intervention in all such cases when intervention

works in the interest of judicial economy and the right of

parties to have their respective days in court. See United States

Airlines, Inc. vs. McDonald, 432 U.S. 345, 97 S. Ct. 2464 53 L

Ed 2d 423 (1977). Applicant intervenors, nevertheless, continue

to have imposed upon them a burden to timely apply and to

clearly establish either that they are permitted intervention by

a statute of the United States or that they claim an interest

relating to the property or transactions which is the subject of

the action and are so situated that the disposition of the action

may as a practical matter impair or impede the inability to

protect their interest, unless it is found that they are adequately

represented by existing parties. It is within the sound discretion

of the trial judge to determine whether in each case the applicant

meets the test.

The trial court in this case gave the applicant intervenors a

full hearing, allowing them to call witnesses thought necessary

to support their applications. Only after that hearing did the

court determine that the applications were not timely made,

that the voluntary settlement between the county, the members

of the governing body and the plaintiffs was fair and reflected a

compromise on the part of al! parties, and that the interests re-

presented by the two citizens groups had been fully and ade-

quately represented by the original party defendants, and that

intervention should not be allowed.

Upon appeal, a panel of the Fourth Circuit Court of Appeals

found that the trial judge abused his discretion in not allowing

intervention as a matter of right under Rule 24(a).

Petitioner submits that the panels’ findings can not be based

upon the record in this case. A review of that record shows that

the intervenors, in the evidence before the trial court, established

nothing to show that they should have been permitted in the

case after its amicable settlement. Evidence as to what their

legally protectable interests are, a necessary element giving rise

to a right to intervene, is simply not shown. The court is referred

to the testimony of Professor Haviland, President of the Citizens

for Albemarle, Inc., and that of Alexander P. Janssen, President

of the Albemarle County Taxpayers set out fully in the appendix.

Petitioner submits that the court of appeals may have been

sidetracked somewhat by the arguments in the District Court,

participated in by the Court, as to what was proper evidence. The

trial judge did, indeed, object to and exclude from his considera:

tion certain testimony by two county board members who were

defendants and parties to the settlement and their attorneys as

to the impact upon them of certain remarks urging settlement

made by the trial Judge in chambers. The excluded testimony

was proffered, however, and is available for this court’s exami-

nation as a part of the record.

Surely, intervenors should have to establish more than the

mere existence of displeusure at a settlement or at the way in

which litigation was managed: see Dobson, et als vs. Salvitti, et

als, United States District E_D. Penna August, 1977 F.R.D. 674,

a case very simiiar in facts to the instani case, whereupon the

district judge refused to ailow intervention by certain Phila-

delphia area property owners who objected to a proposed settle-

ment between the private plaintiffs in that case, described as

persons displaced from their homes through urban renewal, and

various federal and city agencies, charged with assisting them

in their relocation efforts because the settlement included an

agreement to locate low cost housing in or near neighborhoods

lived in by the applicant intervenors.

The court there found that the applicants had no direct

substantial legally protectable interest... “citing the require-

ments of Hobson vs. Hansen 44 F.R.D. 18 (D.D.C. 1968). The

court also found the applicant intervenors had chosen to

“ignore” this litigation until approximately two and one half

years after its commencement, long after various alternative

settlernent possibilities had been fully explored. . .’’. The

District Court distinguished the facts, supperting the ultimately

successful intervenor in United States Ai:lines vs. McDonald 432

U.S. 385, 97 S. Ct. 2464, 53 LED 2d 423 (1977) who attempted

to intervene after settlement to appeal an earlier denial by the

trial court of class certification after it was evident that the

plaintiffs did not intend to appeal. United States Airlines

supra favors intervention but the case really is a narrow holding

limited to rather esoteric questions concerning the tolling of the

statute of limitations, the responsibility of members of a puta-

tive class upon denial of certification as relates to intervention,

generaily under Rule 24.

Interestingly, the conclusion of the majority in United

States Airlines is soundly criticized in a dissent authored by

Justice Powell joined by the Chief Justice and Mr. Justice White.

The dissenter’s cautioned that “today’s decision will deter settie-

ments because of the additional uncertainity as to whether the

agreement wil! be nullified by the actions of persons who enter

the litigation only after final judgment’; United States Airlines

vs. McDonald, supra, 53 L Ed 2nd P 437. Certainly the problem

is real. The circuit Court’s decision in this case opens the doors

much wider to intervenors than the Supreme Court has yet

seet fit to do. It finds an ‘‘abuse of discretion” on the part of

the trial judge in his conciusion that the applications were not

timely filed although it is clear from his opinion that he resorted

to the totality of circumstances tests prescribed by their Court

in N.A.A.C.P. vs. New York 413 U.S. 345 37 L Ed 2d 648 (1973)

Similarly, an absolute right of the applicants to intervene was

found by the panel on virtually no relevant record.

CONCLUSION

For the reasons, a writ of certiorari should issue to review the

judgment and opinion of the Fourth Circuit.

Respectfully submitted,

Samuel W. Tucker

509 North Third St.

Richmond, Virginia 23219

Gerald G. Poindexter

304 W. Cary Street

Richmond, Virginia 23220

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-2308

JAMES N. FLEMING,

and

FLEMENCO ENTERPRISES, INC.,

a Virginia Corporation,

and

Four Seasons West

A Limited Partnership, Appellees,

Vv.

CITIZENS FOR ALBEMARLE, INC., and

ALBEMARLE COUNTY TAXPAYERS, INC., a

Virginia Corporation, applicants

as intervention defendants, Appellants.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. James C. Turk, Chief

Judge.

ORDER DENYING REHEARING AND REFUSING STAY

° OF MANDATE

Upon consideration of the petition of the plaintif-appellees

for a rehearing with the suggestion for a rehearing in banc,

it appearing that no request for a poll of the entire court has

been made, as provided by Rule 35(b), of the Rules of Appellate

Procedure, now, with the concurrence and approval of Judges

Butzner and Widener, the other members of the hearing panel,

it ts

la

ae UNITED STATES COURT OF APPEALS

ORDERED that the said petition for rehearing be, and it FOR THE FOURTH CIRCUIT

is hereby, denied, and it is further

ORDERED that the motion for a stay of the mandate be,

and it is hereby, denied.

No. 76-2308

For the Court

S/Circuit Judge Bryant

JAMES N. FLEMING,

A True Copy, Teste: and

William K. Slate, 11, Clerk FLEMENCO ENTERPRISES, INC.,

By S/Emily Rueger a Virginia Corporation,

Deputy Clerk and

Four Seasons West

A Limited Partnership, Appellees,

V

CITIZENS FOR ALBEMARLE, INC., and

ALBEMARLE COUNTY TAXPAYERS, INC., a

Virginia Corporation, applicants

as intervention defendants, Appellants.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. James C. Turk, Chief

Judge.

Argued March 9, 1978 Decided June 12, 1978

Before BRYAN, Senior Circuit Judge, BUTZNER and WIDENER,

Circuit Judges.

James B. Murray, Jr. (Richmond and Fishburne on brief) for

Appellants; Gerald G. Paindexter (Poindexter on brief) for

appellees.

3a

2a

BRYAN, Senior Circuit Judge:

The initial prayer in this appeal is for leave to the Citizens

for Albemarle, Inc. and Albemarle County Taxpayers, Inc. to

intervene in an action for declaratory and injunctuve relief,

as well as damages, against Albemarle County, Virginia and its

Board of Supervisors, individually and officially, for refusal

allegedly upon racial bias of the plaintiffs’ request for rezoning

of land for development into a planned community. 42 USC

1983. Next, upon allowance of intervention appellants would

seek vacation of and a new trial upon the April 26, 1976

District Court decision ordering the rezoning because of a pur-

ported pendente /ite agreement of the Supervisors, now impeach-

ed by the appellants as procured under duress. Both interven-

tion and the new trial were denied on August 11, 1976 and

the movants appeal.

|

| We think, to begin with, the intervention was demandable

of right, its refusal an abuse of discretion.’

7

1. Rule 24. Intervention

(a) Intervention of Right. Upon timely application

anyone shall be permitted to intervene in an action:

(1) when a statute of the United States confers an

unconditional right to intervene; or (2) when the

applicant claims an interest relating to the property

or transaction which is the subject of the action and

he is so situated that the disposition of the action

may as a practical matter impair or impede his

ability to protect that interest, unless the applicant's

interest is adequately represented by existing parties.

1. Appellants moved with dispatch. The rezoning came

about through events hardly foreseeable before the decree of

April 26, 1976. Appellants lodged their motion with the Clerk

of Court on May 5, with copies then mailed to the trial judge

and to all of counsel, but it could not be “filed’”’ until the next

day, the Clerk having closed his office early on the fifth.

FRCiv. P5

4a

2. Again, the appellants claimed and, as will momentarily

appear, asserted substantial grounds for claiming ‘‘an interest

relating to the... subject of the action’ and were ‘‘so situated

that the disposition of the action (could) as a practical matter

impair or impede (their) ability to protect that interest unless

(their interest was) adequately represented by existing parties”’.

FRCiv. P 24 (a) (2).

3. The motion for intervention appropriately laid cut its

grounds. It was attended by a pleading consisting of a motion,

to set aside, in effect, the order of April 26, 1976 and to grant

a new trial, reciting therein appellants’ defenses to the rulings of

the District Court in the order. FRCiv. P 24 (c) and 59.

In fine, appellants met with all the procedural prerequisites

exacted of an intervenor. Above all, their effort at intervention

in the circumstances was not precluded, as has been suggested,

because their motion was not made until after a final decree

had been entered. Vide: Cascade Natural Gas Corp. v. El Paso

Natural Gas Co., 386 US 129 (1967).

1

The facts demonstrate incontrovertibly that appellants

possessed, as just observed in referring to Rule 24 (a) (2),

such ‘‘an interest relating to the property or transaction” in

suit that ‘‘the disposition of the action” could “‘impair or im-

pede” their ability to protect their concern. Admittedly, the

two corporations were composed of upwards of 1000 residents

or property owners in the County who, not without reason,

feared that the ‘‘planned community” would endanger the purity

and potableness of the water in the Albemarle County Reservoir.

This question was the subject of conferences between the plain-

tiffs, the owner of the site of the proposed community, and his

associate, on the one hand, and the Supervisors including the

County Attorney, on the other. The first suggested solution of

their differences was discarded, a second pondered.

Before formal consummation of an agreement upon the

second proposition, several of the Supervisors had left the

Board because of the expiration of their terms of office; new

members succeeded them. With no settlement ensuing, the ac-

tion came on for trial before the District Judge and an advisory

jury on Monday, April 19, 1976. Plaintiffs’ proof outlined the

two unadopted rezoning plans but it indicated that the second

5a

one had seemingly been agreeable to, though never accepted by,

the first Board of Supervisors. Defendants’ case began Thursday,

April 22 and continued for four and a half hours, after which

the Court recessed unti! Monday, April 26. Before dispersal,

however, the judge asked counsel to meet with him.

At that time the judge pressed the Supervisors to accept

the proposed settlement, stating that he had been advised that

the former Board had consented to settle the case in September

1975 and that he should “‘hold them to this commitment’’. -

Further, the judge stated, there were indicia of ‘‘hanky-panky”’

afoot, possibly by the second Board. Finally, he warned that

should damages be awarded against the Supervisors, he would

do all he could to see that the damages were paid out of their

own pockets, reminding them that he, not the jury, would

actually fix the amount. These remarks were heard by some of

the Supervisors and repeated to others by the County Attorney.

On conclusion of the meeting of the judge with counsel, the

County Attorney asked him for an opportunity to convene we

Board to think about a settiement. At this gathering the judge's

comments upon the possible personal monetary answerability

of the Supervisors were repeated. Thereupon the Attorney ad-

vised them to make the settlement, rather than to hazard their

“entire personal fortune’, adding that this overbalanced any Hs—<—~

risk to the public. He confessed that this course was not advised

in the County’s best interest, but was to save the Supervisors

from pecuniary loss.

After this conference on April 22, the case was adjourned

to Monday, April 26. When the Court reconvened that day the

order affirming the settlement and granting the rezoning was

signed. Thereafter, on May 5, as heretofore related, appellants

tendered their motion to intervene. It was heard July 6.

At that session appellants offered the testimony of all

those who had heard admonitions given by the judge on April 22

to the Supervisors to settle the case. This evidence was objected

to by the judge sua sponte and held inadmissable by him. How-

ever, he let it be put off record as a proffer of proof but not to

be considered. On August 11, 1976 by opinion and order the

motion for intervention and a new trial were denied and are

now in this appeal.

Our decision is to reverse. The unquestioned proof man-

ifestly establishes that the appellants had ‘‘an interest relating to

the... subject of the action’, and that they were ‘’so situated

6a

the disposition of the action (could) as a practical matter im-

pair or impede (their) ability to protect that interest, unless

‘appellants’ interest was) adequately represented by existing

parties’. FRCiv. P 24 (a) (2). Obviously, appellants’ interest

was not represented at all.

The order of August 11, 1976 will be vacated, and this

action is remanded to the District Court with directions to

allow the intervention; to admit in evidence the testimony

proffered by the appellants of the advice urged by the trial

judge on April 22; to grant a new hearing on whether the set-

tlement should be set aside; and to require an answer from the

county with respect to the validity of the settlement. Because

the trial judge then presiding may be called to testify in the

action after the remand, another judge should be assigned for

the hearing of this case.

Vacated and Remanded.

7a

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

JAMES B. FLEMING, et al,

plaintiff

Civil Action Number 75-11 (C)

vs. MEMORANDUM OPINION

and

ORDER

ALBEMARLE COUNTY, et al, By: James C. Turk

Defendants Chief, U.S. District Judge

This case is before the court for decision on a motion to

intervene pursuant to Fed. R. Civ. P. 24(a) and a motion for a

new tria! pursuant to Fed. R. Civ. P. 59 filed by the Albemarle

County Taxpayers, a non-profit Virginia corporation and the

Citizens for Albemarle, an unincorporated Virginia association

(hereinafter “intervenors’’).

A brief review of the history of this case is necessary. This

suit was filed on March 17, 1975 by James Fleming and two of

his business enterprises against Albemarle County, Virginia and

the members of the Albremarle County Board of Supervisors.

The members of the Board of Supervisors were sued individually

and in their official capacities and the plaintiffs sought damages

and injunctive and declaratory relief. The basis for plaintiffs’

suit was that the Board of Supervisors had refused their request

to rezone certain land which they proposed to develop into a

planned community for middle income persons and that such

refusal was based on racial considerations. Plaintiff Fleming is a

black man.

As this case progressed the parties discussed settlement and

at a pretrial conference on September 19, 1975 it appeared that

a settlement would be reached. However, agreement between the

parties was not achieved and the case came to irial before a jury

on April 19, 1976. Meanwhile four members of the Board of

Supervisors had been defeated for re-election and the four new

members of the Board were added as party defendants. The

court took under advisement defendants’ various motions

8a

pending the presentation of evidence. Evidence was presented

from April 19 until Apri! 22, 1976 at which time court was

recessed until April 26. When the trial resumed on April 26,

1976 the parties met with the court and agreed to a settlement.

The court accepted the settlement and dismissed the case subject

to the conditions agteed upon by the parties and the court. Ten

days later, on May 6, 1976 the present motion to intervene and

motion for a new trial were received by the court.

In support of their motion to intervene, the intervenors

assert that because of the threat of personal liability to the

individual defendants they could not and did not adequately

represent the interest of Albemarle County and its Board of

Supervisors. intervenors claim to represent the citizens of

Albemarle County in their efforts to protect their water supply

which they assert is jeopardized by the settlement reached in

this case.

Pursuant to either Fed. R. Civ. P. 24(a) (intervention of

right) or 24(b) (permissive intervention) the application to inter-

vene must be “‘timely’’. The rules do not define what is ‘‘timely”’

and accordingly a determination of timeliness is a matter left to

the court’s discretion. See 7A Wright & Miller, Federa/ Practice

and Procedure 572-584 (1972). ‘‘Timeliness is to be determined

from all the circumstances’. VAACP v. New York, 413 U.S. 345,

366 (1973).

In this case the court is of the opinion that the circum-

stances do not justify intervention. The motion to intervene in

this case was filed almost fourteen months after the suit had

been filed and after settlement had been reached. This case

generated considerable publicity in the Albemarle County area

from its inception, and the issue of land development which

might adversely affect the South Rivanna River Reservior has

been a controversial policical issue in Albemarle County for a

considerable period of time.

Intervenors contend that prior to the settlement agreement

in this case, they reasonably expected that the County would

protect their interests, and it was only after the defendants

agreed to settlement that they realized that intervention was

necessary to protect their interests. Intervenors claim that the

defendants agreed to settle the case in order to protect their

personal pecuniary interests at the expense of the public’s

interest in the drinking water supply. However, this suit sought

damages from the members of the Board of Supervisors in their

individual capacities from the outset, and intervenors must be

9a

charged with knowledge of the alleged confiict-of-interest from

the beginning. But more fundamentally, this court cannot

accept the intervenors’ contentions that the individual defend-

ants completely ignored the interests of their constitutents in

reaching this settlement and that the settlement achieved in this

case threatens the public’s water supply. The settlement agree-

ment reached in this case embodies substantial compromises by

both sides. From the beginning plaintiffs had sought to have their

property zoned so as to allow at a density of 6.7 units per acre as

had been allowed previously by the county on adjacent land;

yet the final settlement order in this case allows development of

the property on the basis of a density of only 2.5 dwelling units

per acre. In addition plaintiffs’ planned development is explicity

‘subject to the existing laws and ordinances of Albermarle

County Planning Commission as set out in the minutes of the

Commission under date of January 13, 1976, subject to modifi-

cation by the Board of Supervisors as it shall deem appropriate.”

The court is of the opinion that the settlement reached in

this case is eminently fair to both sides and the citizens of

Albemarle County. The court is further of the opinion that

counsel in this case are to be commended for their efforts in

reaching this settlement. From the court’s consideration of the

circumstances of this case and the arguments of the intervenors,

the court conciudes that the motion to intervene is untimely and

in the exercise of the court’s discretion should be denied. See

Black v. Central Motor Lines, 500 F.2d 407 (4th Cir. 1974);

Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973). The intervenors’

motion for a new trial must therefore also be denied.

Accordingly, for the reasons stated the motions to

intervene and for a new trial are denied, and it isso ORDERED.

The clerk is directed to send a certified copy of this

opinion and order to counsel of record.

ENTER:

s/Chief District Judge Turk

Chief, U. S. District Judge

August 10th, 1976

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

JAMES N. FLEMING, et al.

Plaintiffs Case No. 75-11

ORDER

vs

ALBEMARLE COUNTY, VIRGINIA

AND THE BOARD OF SUPERVISORS

OF ALBEMARLE COUNTY,

Defendants

At Charlottesville in saiddistrict this 26th day of April, 1976.

This day came James N. Fleming and Flemenco Enterprises,

Inc., Plaintiffs in the above captioned action, by counsel, and

Albemarle County, Virginia, and the Board of Supervisors

of Albemarle County, Defendants in the above captioned action,

by Counsel, and represented to the Court that the parties

agree that, based upon and by reason of discussions between

the Plaintiffs, the Defendants, and the Court, including a

pretrial conference held on September 19, 1975, and further

negotiations and concessions by both parties, this cause should

be dismissed upon the following grounds:

1. That the Plaintiffs’ request for rezoning of 128.06 acres

on the west side of Hydraulic Road and Rio Road in the County

of Albemarle, and the Plaintiffs’ proposed planned unit develop-

ment ‘Evergreen’ be approved by the Albemarle County

Board of Supervisors on the basis of a density of 2.5 dwelling

units per acre.

2. That the Plaintiffs’ development known as ‘‘Evergreen”’

shall be subject to the existing laws and ordinances currently in

effect in Albemarle County, Virginia. It appears from the endorse-

ment of this Order by Counsel for both the Plaintiffs and the

Defendants that all parties concerned are in agreement and that

this cause should be dismissed. Accordingly, it is

ORDERED

That this Complaint, Civil Action No. 75-11, be, and it

hereby is, dismissed with prejudice, and it is

11a

FURTHER ORDERED

That the Plaintiffs’ request to the County of Albemarle

for rezoning of 128.06 acres on the west side of Hydraulic

Road and Rio Road in the County of Albemarle and the Plain-

tiffs: proposed planned unit development Evergreen” be,

and it hereby is, approved on the basis of a density of 2.5

dwelling units per acre, and it is

FURTHER ORDERED

That the Plaintiffs: development known as “Evergreen”

shall be subject to the existing laws and ordinances currently

in effect in Albemarle County, Virginia, and to the conditions

recommended by the Albemarle County Planning Commission

4s set out in the minutes of that Commission under date of

January 12, 1976, subject to modification by the Board of

Supervisors as it shall deem appropriate.

in the event the Plaintiffs and the Board of Supervisors

are unable to agree as to the conditions to be imposed with

respect to the development of the property, either side may

request the Court to reinstate this case on the docket for the

purpose of adjudicating the question without

payment of costs.

Copies of this order are directed to be mailed or delivered

to Gerald G. Poindexter, Esquire, 304 West Cary Street, Rich-

mond, Virginia 23220, counsel for the Plaintiffs, and to

George R. St. John, 416 Park Street, Charlextesville, Virginia

22901, counsel for the County of Albemarle and the Albemarle

County Board of Supervisors, and to Edward D. Hess, Esquire,

414 Citizens Commonwealth Center, P. O. Box 98, Charlottes:

ville, Virginia 22902, and Ross W. Krumm, Esquire, 700 East

High Street, Charlottesville, Virginia 22901, counsel for Lloyd

F. Wood, Stuard F. Carwile, Gordon L. Whttler, and William

C. Thacker, Jr. |

ENTER: s/Chief District Judge Turk

DATE: April 26, 1978

Endorsed by Counsels of Record

Gerald G. Poindexter

Plaintiff

George R. St. John

Defendants

12a

EXCERPTS FROM TRANSCRIPT OF

JULY 6, 1976

HEARING ON

APPLICATIONS TO INTERVENE

IN THE

UNITED STATES DISTRICT COURT

FOR

THE WESTERN DISTRICT OF VIRGINIA

BEFORE

THE HONORABLE JAMES TURK

CHIEF JUDGE

Page numbers indicated are taken from the complete transcript

which is a part of the record.

13 a

88

ALEXANDER P. JANSSEN,

a witness called by the Defendants, after being first duly sworn,

testified as follows:

DIRECT EXAMINATION

BY MR. MURRAY:

Q.

Mr. Janssen, would you please identify yourself and give

your occupation, sir?

| am Alexander Patton Janssen, and | am a businessman,

a manufacturer.

Mr. Janssen, do you have a position with either of the

two parties seeking to intervene?

Yes, | am President of the Albemarle County Taxpayers.

How many members does your organization have?

We have presently 837.

Has your group been active in the efforts in the County

to protect the South Fork Rivanna Reservoir?

Yes, sir.

Has it been active in that effort since its inception?

Within a few months after its inception.

When was the group formed?

Early spring of 1975, March the 1st, | believe is the date.

Has your group opposed other developments other that the

Evergreen Development around this reservoir?

We have tried to get the County Board of Supervisors to

enact conservation zoning around this reservoir and all

reservoirs and from that point of view we opposed the

14a

Q.

A.

Oo b> OD Pp

89

previously mentioned Wendell Wood development. We

have written editorials, letters to the editor, which have

been commented on by the editor for the Daily Progress.

Mr. Janssen, is your membership open to and solicited from

all citizens in the County?

Yes.

ls it open to black persons?

Yes.

Dis you recently pol! your membership and several other

groups regarding the issue of protection of the reservoir?

We did in 1975 poll the Albemarle County Taxpayers and

the same letter was sent to the Citizens of Albemarle

Civic League.

What was the results of that poll?

To the best of my memory we had 687 ballots returned of

which over 97% were for conservation zoning around the

reservoir, 2% were against it and 1% were undecided.

Would conservation zoning around the reservoir have

prohibited the density of the development of the proposed

Evergreen?

Yes.

Ninety-seven per cent of the people responding were

opposed -- were for that sort of development?

Yes.

MR. MURRAY: No further questions. Please answer Mr.

Poindexter’s.

15a

90

CROSS-EXAMINATION

BY MR. POINDEXTER:

Q.

Pe ee

Mr. Janssen, is it?

Yes.

How do you spell that?

J—A—N-—S-—S-—E-N.

Would you say that your organization is as Mr. St. John

described it, a group that supports conservative fiscal

policy?

| would say that the — that is not one of the purposes

that the organization was organized for. We were organized

to inform our members of those facts and those projects

or programs that would come before the County Board

of Supervisors that would affect them, that would affect

them, their taxes or any of their well-being. We are a group

that disseminates information on all projects that we think

our members would be interested in or that they bring

before us and we would like to get more facts about it and

then we will poll the members, give them pro’s and con's

on a particular subject, state it pro and state it con and let

them vote on it.

When they send their polls back to us we tablulate them

and then present these facts to the County Board of Super-

visors. The whole purpose of this organization is that after

once you have elected your representatives, most of the time

the people no longer have anything to do with you. What

we are trying to do is to bring the people more in play

with the daily affairs of the County Government by keeping

them well informed of what's going on and then asking them

to vote on issues so the legislators would know their feeling.

That’s the main purpose of our organization.

You say it is open to all persons?

Yes.

16a

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91-92

Do you have any black members at this time?

Whitney Smith is on the Steering Committee and Ben

Fleming is proposed for the Steering Committee. He's at

Whitehall and has done active work for us up in Crozet.

You have only two black members?

Oh, no. Joe Barber is a member and — we don’t know —

we don’t identify our members by any race at all. If we

went through them | think we would find we have a

considerable number of black members.

How many?

Percentagewise?

Yes, sir.

Well, | think then 2%, 3%. This would be 20 or 25 members.

We have that many.

How many people are in the County? Do you recall?

In the County of Albemarle?

Yes, sir.

| think upward of 40,000—46,000.

So you just, in fact, at this time represent a small, a very

small, segment of the County?

We represent 837-some people.

What percentage is that of over 40,000?

| guess 22%.

Did it take an official act to obtain Counsel to intervene,

to attempt to intervene, in this case? Some board meet?

17a

93

Our Executive Committee did.

What interest is it that you believe should be protected

that has not already been protected?

The preservation of the water supply, the South Fork

Rivanna Reservoir. It’s public knowledge that it is the most

important water supply that Albemarle County has and

without it we are in bad shape.

And you believe that your County Board of Supervisors

and its Attorney and the Court did not give consideration

to that issue before the Order was entered on April 26?

Before the Order was entered?

Or at the time the Order was entered.

They gave a lot of consideration to it and did give con-

sideration to it for a whoie year. The knowledge i have

is what | read in the newspaper and from what | know about

it and the way the Order was entered | do think our Board

of Supervisors had a serious conflict of interest.

Who should have represented the County? Who should

have taken over the reins of government and made decisions

for the County? Your group or the other group?

Our group? No—

Some other group?

| don’t know what the law says if the County Board of

Supervisors doesn't ‘‘pan out”. | don’t know who takes

over.

Are you all about to take over?

No, we are not about to take over. We want to find out what

would happen, how to get representation on the matter that

would protect the water and defend the water rights around

the reservoir.

18a

94

Wendell Wood was there and we iought Wendell Wood and

| told Wendell Wood many times that the public water

supply is more important. | am a businessman like he is

and | told him we differed on this property and | think

he should not be allowed to build out there and | think

the same thing is true of Mr. Fleming's or anybody else's.

| don’t know of a — |

THE COURT: The basis of his suit is what | am saying. What he

alleged was discrimination because of race. Did you

know that?

WITNESS: No, | didn’t pay any attention to this.

THE COURT: Well, don’t you think you ought to have sort of

found out the basis of it before you tried to intervene?

WITNESS: The basis of — the reason we intervened, Judge, !s

because we thought there wasn’. any representation on

the decision. We didn’t think our Board of Supervisors

had made the decision in the best interests of the citizens

of Albemarle in the protection of their reservoir.

MR. POINDEXTER:

Q.

\f they made that their decision or continue to make their

decisions what courses are open to you? What can you do

about it?

Well, what we do about it -- the decisions that are made

that are bad we try to present the facts to our membership,

just the absolute facts. The pro’s and con's and let them

make their own decision.

Would you go so far as to recall or impeach candidates or

remove them from office?

If they get that bad — if things came out — if matters

came out that sould be brought to the attention of the

citizens of Albemarle, if any newspaper articles were

written, we would write them the facts as we would

see them and these are only the facts and send them out

19a

95

in a newsletter to our people. This is to insure that the

citizens do know what's going on because not everybody

reads Our newspaper.

Q. Yes, sir, | understand the information gathering but you

have done more than that in this case. You have obtained a

lawyer and you have come into Court and you are asking

to be a legal entity before the Court.

A. That's right.

Q. To take direct action as such. Is that correct?

A. In this case we do because we think the reservoir can be

irreparably damaged if this development is permitted or

Wendell Wood's either.

Q. Have you decided to intervene in Mr. Wood's case? That has

not been decided by the Court. Have you made your plans

to intervene in that case?

A. No. In Mr. Wood's case —

Q. Asa legal entity?

A. In Mr. Wood's case we will have to wait and see what that

study shows and what the Best Study would say could be

permissible. No if it looks and it would be in our judgment

that we think the reservoir would be damaged, even if the

Best Study says it wouldn't, we might intervene in that.

| can’t tell you that, but | do hold the reservoir to be the

most important asset of the county and the community.

Q. Do any of your members — are any of your members,

to your knowledge, adjoining property owners?

A. | think there is one member, | can’t recall his name, | tell

you who it is, it’s Bedford Moore who has property up

there, is the only one | know.

THE COURT: Were you prese.it during any of the trial of the

20 a

97

pending case?

WITNESS: No, sir.

THE COURT: You weren't aware of the testimony that came

in about the pollution of the lake that occurred further

upstreatm, | believe in Crozet?

WITNESS: | know of — | am well aware —

THE COURT: At Morton's Frozen Foods?

WITNESS: Yes, | am well aware of those things.

THE COURT: Why didn’t you take some action in Court in

connection with those cases of pollution?

WITNESS: Well, sir, we thought our Supervisors were well

aware of this. We had discussed these things before and we

had our Supervisors representing us.

THE COURT: But the testimony was those were sources of

pollution of long standing and was damaging the reservoir.

Why hadn’t you done anything about that?

WITNESS: Because the Supervisors knew this. There is a Best

Study now trying to determine the point sources of pol-

lution and pending the outcome of that | think it would be

premature to do anything because the Supervisors have

done about all they can do. They have a $150,000.00

study going on it to try to tell us what is going on at the

reservoir.

THE COURT: Did you know that they were not going to

issue any permits for development until this study is

completed?

WITNESS: Yes. There’s been more turning now against building

at the reservoir. | know that.

THE COURT: Any additional questions?

21a

98-99

MR. POINDEXTER: No. sir.

THE COURT: Any redirect?

MR. MURRAY: Yes, Your Honor.

THE COURT: Have you polled your members on whether or not

they want to intervene in this suit or did just the Board

decide?

WITNESS: No, just the Executive Committee. We have not polled

the members.

THE COURT: You don.t know how many of thern would want

to intervene if they were asked?

WITNESS: No, | don’t. | think the majority of voices, 97%

that answered that last questionnaire. They have all been,

Judge, throught the whoie thing, terribly concerned with

this water supply throught the whole year.

REDIRECT EXAMINATION

BY MR.MURRAY:

Q. Mr. Janssen, let me clarify one thing in your testimony on

cross-examination. Isn't it true that you knew racial dis-

crimination was alieged in this case, but as far as you were

concerned the important issue was the reservoie?

A. Right. | think this — in fact, | knew that it had come up

because | had heard it before when Mr. Fleming’s case first

went before the Board a couple of years ago. | knew what

was there, but we didn t consider this as the important

issue.

Q. What did you consider the important issue?

A. The preservation, or the potential damage that might be

done to that reservoir by high density developments.

Q. But you knew that his claim about racial discrimination did

exist?

22a

100

A. Yes, | did, but this is not the primary thing in my mind.

MR. MURRAY: No further questions.

THE COURT: All right. Any additional questions?

MR. POINDEXTER: No, sir.

(Witness steps down.)

MR. MURRAY: Mr. Kenneth Haviland, please. The last witness,

Your Honor.

JOHN KENNETH HAVILAND,

a witness called by the Defendants, after being first duly sworn,

testified as follows:

DIRECT EXAMiNATION:

BY MR. MURRAY:

Q. Dr. Haviland, would you give your name and occupation,

please?

A. John Kenneth Haviland. | am a Professor at the University

of Virginia.

Q. What are you a Professor of, Dr. Haviland?

A. Aero Space Engineering.

Q. Do you have a position with either of the proposed inter-

veners in this case?

A. Yes, | am President of the Citizens for Albemarle.

Q. How many members are there in your group?

A. About 270.

THE COURT: Now is this the non-profit corporation or is that

23 a

MR.

Oo > Oo >

101

the Albemarle Taxpayers?

MURRAY: As of the filing of the Petition to Intervene

it was a Virginia Association unincorporated. It is now

incorporated.

. MURRAY:

Dr. Haviland, has your group been active in lobbying to

protect the reservoir?

Yes,

For how long?

| think about 1972 when the proposal for a revision of the

master plan was started. | was retained as consu!tant.

What was your position at that time?

The overwhelming position was taken that we should

have protective zoning at the reservoir.

Was this the position of your entire membership as elicited

from any poll or study?

At that time | didn’t even belong.

ls that your membership’s position today?

It is today.

Have you opposed other developments around the res-

ervoir other than the Plaintiff's in this case?

Yes. | opposed Wendel! Wood's and an animal hospital.

Three of them.

ls membership in your organization open to and solicited

from all citizens of the County?

It's open to citizens, yes.

24a

Q.

A.

102

ls it open to blacks, specifically?

Yes.

MR. MURRAY: No further questions. Please answer Mr. Poin-

dexter’s.

CROSS-EXAMINATION

BY MR. POINDEXTER:

Q.

> 2 > oO > OP POC >

Dr. Haviland, did your Board meet and take a — vote a

resolution to become involved in this attempt to become

involved in this suit?

| polled the Board.

You polled the Board?

Yes, something like 13 people.

ls Mr. Moore on your Board?

Mrs. Moore is.

Did you consult her?

Yes.

Are you friends of the Moores?

| Know them, I’m not a close friend. | know them, he’s a

colleague of mine.

Would you say you opposed other developments around

the reservoir?

Yes.

What have you done in opposition to these developments?

For example, we appeared at most of the hearings in

25a

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yf ? P

103

Wendeil Wood's case. | think | called 15 or 20 people to

make them aware that this was coming up and | attended

the hearing of the Planning Commission and | made a

short statement at one of them.

Who suggested that you intervene in this case?

| don’t remember exactly how it came about, but | was

aware that Mr. Janssen was considering it and | talked with

him and then | started to poll my membership and some-

tirne Mr. Moore —

Mr. Moore or Mrs. Moore?

Mr. Moore. | had called her because —

He's not a member, is he?

| believe | am right, she is and he is not. | couldn't say.

Who is paying for it?

We established a fund.

What ‘‘we”’ is that?

That is, The Citizens for Albemarle established a fund.

Just individual members? How many members did you

collect money from?

| don’t have those records. Our Treasurer would. We sent

out a letter to our membership and to two other Civic

Leagues.

Civic Leagues, who is that? Are they going to intervene?

No.

How do they relate to your organization?

No particular way.

26a

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104

Have you decided to intervene in Mr. Wood’s case?

No, to answer your question truthfully, we-.actually hired

a counsel about two years ago to find out whether we citi-

zens had any standing in Court at all and at that time the

citizens did not have any right. We were considering trying

to take some action against the County for failure to pro-

tect the reservoir.

Later on we consulted with the environmental group

at the University to see whether or not we had any standing

in Court and we got the same advice that the citizens had

no standing in Court.

Citizens had no right?

We were told that the citizens had no standing in Court.

There was no way we could, legally could, enter the case

and try to force the Supervisors to protect these waters

around about the reservoir.

ls it fair to say that there is a disenchantment with the

Board within your membership?

We feel that the present Board of Supervisors is a very

excellent Board.

Why are you disagreeing with the decision that they made?

| think it was a bad decision.

That is just one isolated incident?

| don't say that | am 100% behind them, but | think we

have a good Board.

So up to this point their track record 's good and repre-

sented the wil! of the body politic here in the County?

There is one issue we have, we fee: they should have

ected to protect the water shed area around the reservoir

and they didn't.

27a

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P PF PP FP

105-106

Do you have any relationship with Mr. St. John, the Attor-

ney for the County?

| am aware that he is a member, but he’s never been active

in any of the Board meetings or anything like that.

Did you talk to him in preparation for today’s testimony?

No, the first time | talked to him was when we were

waiting for this case to come up.

Did you talk about the case?

About this case?

Yes, sir.

I'm not sure that we did.

You don’t remember whether you talked about this case

or not?

| think we made just a brief mention of it.

Did he appear to be in sympathy with you?

| never got that far.

Do you feel that you are prejudiced in any way against

black people?

No, sir, | don’t.

You say there are black people in this group?

| was told that there are. At our meetings | have seen

them because | remember showing them where they

belong. When we have a meeting it is open to the public.

Do you pay any kind of dues, issue cards?

28 a

i

PF PP PP PP ?P

107

We don’t actually issue cards. We pay dues of $1.00.

Other than the Moores, do you know of any other members

of your organization that have property adjoining the

Evergreen project?

Dave Craig is a member.

He was a Plaintiff in this case, wasn’t he?

Yes.

ls he a member now?

i assume so.

The annual dues $1.00?

That’s the minimum. We solicit you can join for a dollar.

What is it, if you got your day in Court, what is it that

you would like to tell the jury or Judge Turk that might

affect the outcome of this case?

We feel there should be proper planning and we would like

to see it rectified. We think the County should plan properly

and we felt this power was taken away from us.

Were you aware that the comprehensive plan of permits

are in fact 2.5 units per acre in the area you were talking

about?

| think the present comprehensive plan is very confusingly

written and one place it says they are going to protect it

and the other says it doesn’t. We are working towards the

new revision plan. We are putting our emphasis on that

plan, and we hope that will straighten it out.

Don't you have a political problem in Albemarle County?

That is, the Board won't do what people believe that it

should have done? Conservation zoning, historical zoning?

Isn't that a part of all of this problem?

29 a

Q.

A.

Pr PF OF

108

| wouldn't call it political.

You wouldn't call it that.

No.

What would you call it?

| think there is certainly a division of interest between

people, | mean, you know, different feelings about some

people feel progress is really good and you should expand

as fast as we can, and some of us feel we should have proper

planning or at least restrained planning.

So it is virtually impossible for the Board to please al! the

people?

That’s right.

They can’t be all things to everybody.

Right.

MR. POINDEXTER: All right, Mr. Haviland. Thank you.

MR. MURRAY: No questions, Your Honor.

THE COURT: All right.

(Witness steps down.)

30a