Town drops the matter

Konick agreement ignored; tourist-home case postponed

At an ever-so-brief regular monthly session Monday night at town hall, the Washington Town Council dropped one legal matter and let another one slide.

Both matters — one of a proposed agreement with local attorney David Konick to end future legal fights over the town’s and the Inn at Little Washington’s 2013 “beautification project,” the other an apparent negotiation with a town property owner over alleged zoning violations caused by the property owner’s allegedly unauthorized house rentals to tourists — were originally on the agenda for a closed-session discussion.

But Vice Mayor Gary Schwartz, running the meeting in the absence of vacationing Mayor John Sullivan, asked to move both items to the open-session agenda, an agenda that contained not much more than the monthly treasurer’s report and minutes approvals.

In the zoning matter, Town Attorney John Bennett told the council that discussions were ongoing with the property owner, who remains unidentified publicly by the council, and suggested they vote to table the matter until the council’s next meeting Aug. 8.

The case prompted a long discussion by the council last month of residents who use such websites as to rent rooms or entire homes to vacationers — without applying for the tourist-home permit now required by the zoning code — and of the Virginian General Assembly’s plans to take the matter out of local hands and regulate such rentals from Richmond.

Town residents Jeffrey and Oxana Butler — whose second fully-furnished home on Gay Street is the only in-town Washington listing that comes up in a search on — did not return a call requesting comment.

Bennett said tabling the matter until August would “allow sufficient time for the concerns of the council to be addressed.” The council agreed unanimously.

In the matter of Konick v. the Town of Washington — a lawsuit Konick filed in early 2015, dismissed by the circuit court last summer and most recently refused by the state supreme court, to which Konick had appealed — Bennett suggested the council merely decide not to respond to Konick’s written request last month that the town and he mutually agree to refrain from any legal action over the beautification project.

With council member Patrick O’Connell recusing himself — O’Connell’s Inn at Little Washington, unlike the town, had countersued Konick last year, and that countersuit was last week settled out of court, the terms of the settlement confidential — the council voted 5-0 to do as Bennett suggested and not respond.

Konick, meanwhile, in a letter he sent to the town last week that was subsequently obtained by the Rappahannock News, complained to the council about a clause he said Bennett had added to Konick’s suggested release-of-liability agreement and sent back to the attorney on July 2:

“Konick hereby covenants and agrees,” the clause read in part, according to Konick’s letter, “that he shall not institute, maintain, assist in, facilitate, draft pleadings or have any involvement in advising a person, entity, potential client or client . . . as to any potential or actual claim, suit, action, cause of action, or any other legal matter involving the Town for any matter accruing through the date of this agreement and further through the date of July 5, 2021 . . .”

“I assume,” Konick wrote to the town, “that Mr. Bennett has advised the Town of the legal doctrine of restraint of trade that likely renders such provisions blatantly in violation of public policy . . . even assuming . . . that I was a besotted fool who was dimwitted enough to agree to them. Happily (at least, for me) I am not.”

Reached Wednesday, Bennett said the clause was not meant to prohibit Konick from practicing law in town, but was merely a result of “him and I negotiating” the terms of Konick’s proposed agreement — a process Bennett said “went nowhere.”

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