Lawyer sanctioned a second time; Inn proceeds with work in Middle Street stub
To see a transcript of Judge Parker’s Aug. 20 ruling (plus testimony and his decision on several further motions, click here.
Circuit Court Judge Jeffrey W. Parker rejected lawyer David Konick’s suit against the Town of Washington and the Inn at Little Washington last Thursday (Aug. 20), ruling for a second and final time that Konick hadn’t the standing to challenge the legality of the town and Inn’s 2013 “Town Square Beautification” project.
Konick, who lives in Rock Mills but has worked in town, off and on, for more than 30 years, appeared in Parker’s courtroom last week to again argue the issue of standing. Unlike the first hearing on “demurrer” motions filed by Inn attorney David Fiske and the town’s special counsel, Robert Mitchell — motions that claim there’s no legal basis for Konick’s petition — Judge Parker ruled immediately after hearing arguments on the defendants’ new demurrers. (The new motions were filed after Konick, as Parker allowed in his original May 18 written ruling, filed an amended suit.)
Parker also sanctioned Konick for a second time, imposing a $500 fine for what the judge considered his improper filing of a lis pendens, a legal claim against the Inn’s property, as part of a second lawsuit Konick initiated (but never served, and later dropped). The second suit was directed specifically against the Inn and O’Connell. In April, Parker sanctioned Konick for the same reason, fining him $1,000 (in both cases, the fine being payable to the Inn).
Parker also dismissed a motion to intervene filed last month on Konick’s behalf by town resident Dawn Schimke, saying that Schimke “can’t intervene unless there is standing on the part of the client [Konick].”
Asked about a possible appeal this week, Konick declined to comment.
Fiske, meanwhile, said the Inn will continue to pursue its countersuit against Konick, in which it claimed that Konick’s original legal actions were improper, pursued by him with malicious intent. No hearings on that suit are scheduled at this time, but Fiske said this week he expects it will reappear on the docket in September or October.
The Inn has also begun construction in the stub end of Middle Street, where contractors have started to remove pavement and prepare for utility and electrical work. Konick, Fiske said, has been asking questions of Virginia Department of Transportation officials about whether they’ve officially released the 170-foot dead-end stretch from the state’s secondary road system. (Listing in the road system confers maintenance responsibilities on VDOT, although most of the actual maintenance on the dead-end street — plowing snow, primarily — has been done by Inn contractors during the last 20 years).
The town vacated the stub street in 2013 and again this spring (after Konick challenged the way it was done). “We are proceeding [with the construction] as if we own the street. VDOT does not own the street,” Fiske said this week, addressing questions about the long-delayed part of the original beautification project that included improvements to the Krebser Building and the U.S. Post Office there.
Fiske said two weeks ago that the Inn had extended the post office lease through November, by which time he hoped the Inn and postal service negotiators could agree on a long-term lease — a contract dependent on a final plan for renovations, parking and landscaping.
“It’s hard to negotiate a lease when everything is in upheaval,” Fiske said. “And Konick is trying to muck up the plans again by going to VDOT, which makes us have to rethink the post office plans.”
Konick originally filed the suit in March, asking the court to invalidate several actions taken by the town council in 2013 as part of the town’s partnership with the Inn at Little Washington and Trinity Episcopal Church.
In his suit, Konick claimed that the town violated Virginia’s constitutional ban on church-state transactions (because it appropriated $20,000 toward the Inn’s still-unfinished $200,000 project, which included paving and landscaping the parking lot owned by Trinity across the street from the Inn’s main entrance); that Virginia conflict-of-interest and procurement laws were violated by the council and by Inn owner Patrick O’Connell, who also serves on the council, in the months leading up to the July 2013 appropriation; and that the town improperly abandoned the 170-foot stub end of Middle Street west of Main, where the Inn planned landscaping and other improvements that would connect the properties it owns on all three sides.
In the Aug. 20 session, as he cited case law that he felt upheld his position, Konick was interrupted often by Judge Parker, asking questions and challenging Konick’s arguments.
After the arguments, Parker said that, although he had taken the matter “under advisement when the initial complaint was filed and . . . wrote an opinion,” he felt it would “be better for the court simply to resolve the matter now.” He sustained the demurrer with prejudice and gave his reasons one by one.
“First,” he said, “the plaintiff alleges he’s forced to pay meals tax. The Court does not agree…. Mr. Konick is simply not a taxpayer. And that really is, I think, a basic fundamental underpinning of this claim.”
Second, he said, he didn’t see any authority for the position that “because the town is small and dominated by the Inn here, that that somehow would constitute standing on a party who feels it’s appropriate for him to take up the cause and litigate this issue.” Parker then likened Konick to a knight in shining armor, “a Don Quixote type,” taking up issues on behalf of “poor, simple town residents who don’t have the wherewithal to bring these actions on.”
And last he called “preposterous” Konick’s claim that standing was conferred because he lives nearby, works in town and has a box at the post office.
Roger Piantadosi also contributed to this report.