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

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.

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 onto the 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, with Goff as the the statutory agent for the County for service of process when it is sued. 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.

About Patty Hardee 256 Articles
Writer, consultant, actor, director, recovering stand-up comic, Patty covers the county’s courts and other topics of interest for Rappahannock News. She lives with her grape-growing husband Bill Freitag in Flint Hill.

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