Judson v. Bd. of Supervisors of Mathews Cnty.

436 F.Supp.3d 852

David L. JUDSON, Plaintiff,

v.BOARD OF SUPERVISORS OF MATHEWS COUNTY, VIRGINIA, Defendant.

Civil No. 4:18cv121

United States District Court, E.D. Virginia.

Signed January 28, 2020

Roger S. Martin, for Plaintiff

Christopher M. Mackenzie, L. Lee Byrd, for Defendant

OPINION AND ORDER

Mark S. Davis, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on a Motion to Dismiss filed by defendant Board of Supervisors of Mathews County, Virginia ("Board" or "Defendant"), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mot., ECF No. 13. For the reasons stated below, Defendant's Motion to Dismiss is GRANTED and this case shall be DISMISSED.

I. FACTUAL AND PROCEDURAL BACKGROUND¹

A. Factual Background

Plaintiff David L. Judson ("Judson" or "Plaintiff") resides on Gwynn's Island in Mathews County, VA ("County"). Am. Compl. ¶¶ 4, 16-20, ECF No. 1. Plaintiff's home fronts the waters of Milford Haven. Id. In 2004, an aquaculture entrepreneur ("Entrepreneur") purchased a seafood business and its land on the shore of Milford Haven, which is accessible by an easement across Plaintiff's property. Id. ¶ 23. The land purchased by the Entrepreneur included an inland one-acre parcel of land that was, until August of 2018, zoned residential. Id. ¶ 24.

Around January of 2018, the Entrepreneur or his representative began discussing with the County a plan to install oyster floats (a method of commercial oyster farming) in the waters of Milford Haven ("Oyster Floats Proposal"). Id. ¶¶ 8-9, 16. The Oyster Floats Proposal would involve the installation of "some 1,400 black plastic floats ... in an area of 5.5 acres of navigable waters of the Haven, as close as a few hundred feet from Judson's and others' waterfront homes." Id. ¶ 21. Then, in February of 2018, the Entrepreneur requested that the County rezone the one-acre parcel of land from residential to business ("Rezoning Request"), in part to facilitate the Oyster Floats Proposal by giving the Entrepreneur a place to store oyster cages and equipment. Id. ¶¶ 27-28. In March of 2018, the Entrepreneur applied to the Virginia Marine Resources Commission ("VRMC") for a permit to implement his Oyster Floats Proposal. Id. ¶ 29.

After giving notice pursuant to Virginia Code § 15.2-2204(A), the Board and the County Planning Commission ("Commission") conducted a joint public hearing on the Rezoning Request on June 19, 2018 ("Public Hearing"). Id. ¶¶ 31-32. Plaintiff alleges that, prior to the Public Hearing, the Board was aware both that the residents of Gwynn Island opposed the Rezoning Request and that at least some residents of Gwynn Island intended to speak in opposition to the Rezoning Request at the Public Hearing. Id. ¶¶ 12, 36. Plaintiff further alleges that the chair of the Board was aware, in advance of the Public Hearing, that the County planning and zoning department was in favor of granting the Rezoning Request. Id. ¶ 39.

At the beginning of the Public Hearing, members of the public, including Plaintiff, signed up to speak. Id. ¶¶ 37-37(a). Plaintiff alleges that the chair of the Board knew which members of the public signed up based on the sign-up sheets and further knew that all of the members of the public in attendance wished to speak against the Rezoning Request. Id. ¶ 37. The chair of the Board began the Public Hearing by addressing the members of the public, including Plaintiff, as follows: "And now we'll enter into our public hearing and let us remember, citizens, that this public hearing is on rezoning. Not on oysters."² Id. ¶ 38.

The Board then allowed a "representative" of the County's planning and zoning department to present a staff report in favor of granting the Rezoning Request. Id. ¶ 40. In his statements, the representative referenced the oyster floats as follows:

It is the request that [the Entrepreneur] to have [sic] this parcel rezoned from R-2 to B-1 for the storage of his oyster float cages.

....

The economy section of the comprehensive plan references multiple supporting claims as to why water based businesses and aquaculture should be preserved or encouraged in Mathews County, such as Mathews County has a proud traditional heritage in water based businesses.

Id. The Entrepreneur was then allowed to speak and also referenced the oyster floats, stating:

Our plan, again, is simple. We want to rezone this piece of parcel to support our aquaculture business. Our plan is to clear the lot while leaving a natural buffer around the perimeter. The aquaculture business is gear intensive. It takes a lot of gear to operate an oyster aquaculture business, and, quite simply, we don't have a place to store that gear.

Id. ¶ 41. Furthermore, during the Entrepreneur's presentation, one member of the Commission referenced the oyster floats, stating: "This expansion in one way, which is all your floats, would eliminate maybe the noise ...." Id. ¶ 42.

After the representative and the Entrepreneur spoke in favor of the Rezoning Request, members of the public were allowed to address the Board and Commission. Id. ¶ 43. Eighteen members of the public, including Plaintiff, spoke at the Public Hearing, all of whom spoke in opposition to the Rezoning Request. Id. ¶¶ 44-44(a). After the first member of the public spoke, a member of the Commission asked the Board chair if they should "make it clear to the speakers and audience that this is a public hearing for land use" to which the chair replied, "I made that clear at the start of this." Id. ¶¶ 45-46. The member of the Commission then stated:

We're going to reiterate it over and over again. If you bring up oysters that's not our ball of wax. Save it for VMRC. This is land use and land use only. That's what you need to keep your comments to. So keep that in mind that we are here for land use.

Id. ¶ 47. After this exchange, any time a member of the public referenced the Oyster Floats Proposal, the same member of the Commission visibly expressed disapproval, such as by shaking her head. Id. ¶ 48. Plaintiff alleges that "[t] hose speaking in favor of the request and proposal were allowed to draw connections between the two in a way that those speaking against the request and proposal were not." Id. ¶ 56. Plaintiff further alleges that such statements and visible displays of disapproval were intended as speech restrictions that were not viewpoint neutral and had the effect of unconstitutionally restricting the speech of members of the public who were opposed to the Rezoning Request. Id. ¶ 49.

With respect to the statements made by Plaintiff during the Public Hearing, Plaintiff alleges that, but for the speech restrictions, he had planned to include in his prepared remarks the sentence: "In closing if this rezoning and VMRC permit is approved it will set a precedent that will leave all waterfront properties at risk." Id. ¶¶ 50(a)-(c). Instead, Plaintiff ended his remarks by saying: "Please deny this zoning request. Thank you." Id. ¶ 50(d). Plaintiff further alleges that at least two other members of the public were adversely impacted by the speech restrictions, one of whom stated at the Public Hearing:

I'm here tonight to speak only of the land parcel, but I had planned to talk about the whole project because it's a holistic kind of project. But since you insist I will cut down what I was going to say.

....

I won't mention the name oyster because you don't want to hear that, but even on land it's still an industrial project, and it will cause, it's bound to cause problems ....

Id. ¶ 51. Another member of the public is alleged to have stated:

I have heard from three comments from the board members that we need to separate this from a land issue only, and I respectfully contend that is impossible. The purpose of the request for this rezoning is to store floats, 712 of them, to destroy five and a half acres of public waterway in one of the busiest and most beautiful bodies of water there is. I've heard you say it is a VMRC issue and I'm not sure we can count on VMRC to do the right thing on that. I believe that you can do the right thing to the citizens that you represent ....

Id. ¶ 58.

After all of the members of the public who had indicated a desire to speak had spoken, the chair of the Board closed the Public Hearing. Id. ¶ 63. Prior to the end of the meeting at which the Public Hearing had been conducted, a Board member asked the County planning and zoning administrator whether there would be another public hearing, to which the administrator replied that there would not. Id. ¶ 64. In July of 2018, the Commission "met and recommended that the Board grant the Rezoning Request." Id. ¶ 67. At the Board's monthly meeting in July of 2018–without giving prior notice that members of the public would be able to speak regarding the Rezoning Request–the Board permitted a member of the public to speak in favor of the Rezoning Request after members of the public who were opposed to the Rezoning Request had left the room. Id. ¶ 68. Then, at the Board's monthly meeting in August of 2018–again without giving notice that the public would be allowed to speak–the Board allowed the members of the public in attendance to speak against the Rezoning Request without the speech restrictions that were imposed during the Public Hearing. Id. ¶ 69. The Board then granted the Rezoning Request. Id. ¶ 71. In September of 2018, the VMRC issued a permit to implement the Oyster Floats Proposal, a decision that Plaintiff and others appealed to the County Circuit Court in October of 2018. Id. ¶¶ 29(a)-(b). The Entrepreneur died in January of 2019, after which the VMRC ruled that his death voided the VMRC Permit. Id. 29(d). An application for a second VMRC Permit regarding the Oyster Floats Proposal was subsequently filed by an entity named Damfino, LLC. Id. 29(e). Said application is pending. Id. 29(g).

B. Procedural Background

On September 21, 2018, Plaintiff filed suit against Defendant (the "Complaint"). Compl., ECF No. 1. The Complaint...