Rock Mills attorney David Konick does not have standing to pursue his March lawsuit against the town and The Inn at Little Washington, according to a ruling issued last week by Circuit Court Judge Jeffrey W. Parker.
Parker’s ruling sustained a “demurrer” motion filed by Inn attorney David Fiske and the town’s ad hoc counsel, Winchester attorney Robert T. Mitchell. The demurrer asks the court dismiss on the grounds that the petition is legally deficient — in this case because of the issue of standing, the point argued by all three lawyers in Parker’s court April 27.
Parker’s ruling, that Konick’s lack of standing is “fatal” to all three counts of his original petition, also gives Konick 21 days from the date of the judge’s letter (May 18) to file an amended petition. Parker added: “Although based upon the pleadings it is unclear how the Plaintiff [Konick] would be capable of remedying the defects in the pleading . . .”
Konick said this week that he is considering an amended petition, pending further legal research. “Or perhaps some brave soul who actually is a resident of town will intervene and be a plaintiff in the suit,” he said. “Naturally I’m disappointed at the ruling because, as a practical matter, it probably means that those legal issues are never going to be properly addressed in a court of law. I don’t think that is the right result.”
Konick’s suit alleged that the town and The Inn broke state procurement and conflict of interest laws and violated the constitutional ban on church-state transactions in several actions the town took to participate in a 2013 “town square beautification” partnership with the Inn and Trinity Episcopal Church to improve the properties around the intersection of Main and Middle streets.
In his arguments, Konick maintained that his daily visits to the town, where he has leased a post office box since 1977 and parked on the section of Middle Street that was deeded to the Inn (though still not developed) and paid the town’s meals and lodging taxes when lunching at the Country Cafe, gave him ample right to petition the court to declare the town’s 2013 actions invalid. (The suit asked no damages, just the court’s declaratory judgement on the council’s actions.)
“Konick identifies a number of facts . . . which he believes supports his assertion of standing,” Parker wrote. “First, he alleges that he uses the roadways in the Town to access his mail and the Courts where he makes his living as a lawyer. He claims only a brief inconvenience from this project and not a denial of access to the Courts or the Post Office. Second, he claims taxpayer status because he pays a meals and lodging tax, the Town’s primary source of revenue. He does not set forth when and where he has dined or lodged in the Town in support of this claim. Further he conceded in oral argument that he did not directly pay the bill, but that the business paid it after assessing him a charge.
“He also says he is a tenant, as he leases a Post Office Box in town. But obviously he does not reside in the Box or at the Post Office,” Parker wrote.
Parker’s ruling appears to dismiss Konick’s arguments on the procurement/conflict-of-interest and church-state issues, but on the issue of the abandonment and conveyance of Middle Street, Parker wrote: “The Complaint sets forth alleged violations of procedural formalities including a failure of the Town to petition the Commonwealth of Virginia Transportation Board for permission to abandon the roadway pursuant to Va. Code 33.2-908. Again, the issue of standing presents itself . . . . However, if standing was not dispositive here, the Court would overrule the demurrer on this issue.”
“I’m very encouraged by the judge’s findings that the legal issues surrounding the giveaway of Middle Street had merit,” Konick said Tuesday.
Konick maintains that the town’s most recent actions to redo the defective 2013 transfer of Middle Street — at a raucous council meeting May 11, in fact, at which Konick and Mayor John Sullivan, among others, got into a shouting match — are still not entirely legal. He questioned the town’s failure to address VDOT’s ownership or maintenance responsibility, of the stub street’s first 50 feet.
Sullivan noted that the town, at that May 11 meeting, later resolved to open discussions with VDOT about those issues, “apparently the result of actions by town officials who are no longer with us,” Sullivan said Wednesday, “and which did not apparently ever result in VDOT actually maintaining the stub street.” That task was assumed by others, Sullivan noted, including, for the last decade or so, The Inn at Little Washington.
A PDF of Parker’s five-page letter is linked below.