Heptad vs. Front Royal Town Council $6-Million Civil Suit Trial Date of June 3 Set as Defense Ponders Judicial Recusal

During a Wednesday, February 21, motions hearing on Heptad LLC’s civil suit for $ 6 million in damages against the Front Royal Town Council for its August 28, 2023, denial of submitted proffer amendments to its over-a-decade-old Swan Farm residential proposal, Judge Daryl Funk raised the possibility of his recusal from hearing the case. That recusal would be due to his long legal-profession relationship with Doug Napier. Napier, who has served tenures as a staff attorney for both the Town of Front Royal and Warren County, is also a partner in Heptad. Judge Funk noted that he has “worked with Mr. Napier in the past” and wondered if that past tie would present a problem for either side in the civil litigation.

While Judge Funk did not indicate he felt his long professional relationship with Napier would make it impossible for him to objectively hear the case and make a fair ruling on the evidence presented, he did say he felt the issue should be raised for the plaintiff and defendant to be aware of. Napier was present along with Heptad partner Ron Llewellyn, observing the Motions Day discussion in Warren County Circuit Court Wednesday morning.

Will there be a civil liability trial on Heptad LLC’s $6-million suit against the Front Royal Town Council on June 3 – and will it be with or without Judge Daryl Funk presiding?? Those questions may both be answered by the Town’s decision on the judge’s offer to recuse himself due to a long-standing professional relationship with Heptad member Doug Napier. Royal Examiner File Photos Roger Bianchini

Plaintiff attorney Matthew A. Westover of the Woodbridge-based Walsh, Colucci, Lubeley & Walsh law firm did not object to Judge Funk continuing on the case and worried at the issue presenting continued and unnecessary delays. However, defense counsel William W. Miller of the McGavin, Boyce, Bordot, Thorsen, & Katz law firm of

Fairfax indicated he would have to consult with his client for a final determination. This reporter saw no one from the town council in the courtroom, though Town Attorney George Sonnett was present observing for at least a portion of the hearing.

Hoping to propel things along as the recusal issue remained unresolved for the moment, the court and involved counsel agreed on a proposed trial date of June 3 on the 9 a.m. morning docket. Judge Funk noted that were the defendant to ask for his recusal due to his past relationship with Heptad partner Doug Napier, that trial date could be dependent on finding a replacement judge “who could swap dates with me.”

Background

As Royal Examiner previously reported, this civil suit revolves around the above-referenced August 28, 2023, denial of Heptad’s submitted proffer amendments on its Swan Farm residential proposal first broached in 2011/2012. Those 2023 amendments included a reduction in the number and types of housing units that would be involved moving forward, as well as acknowledgment of past situations related to the now-completed construction of the adjacent Leach Run Parkway.

Changes presented as part of the Swan Estates proffer amendment proposal last year reduced the involved acreage from 98.25 acres to the west of Leach Run Parkway down to an estimated “approximate 86 acres”, with the number of units reduced from 450 to 335, with all multi-family units eliminated. Of the council denial, Count 5 of the civil complaint states: “The failure or refusal to approve the 2023 Proffers has left Heptad subject to the 2012 Proffers, which impose an unreasonable and unconstitutional condition on the development of the Property that remains a burden on the Property, specifically an unconstitutional monetary contribution toward the cost of construction of Leach Run Parkway that must be removed.”

A Heptad graphic with Leach Run Pkwy. swerving bottom to top at right, outlining the Swan Farm property earmarked for residential development since 2012 when initial proffers were established. A legal issue now is whether the town council’s Aug. 28, 2023, split 4-3 vote of denial of Heptad proffer amendments, updated to new circumstances, created an unlawful burden upon the development company to the tune of $6 million in damages. Town council, below pondering that decision, sure hopes not.

Heptad also alleges inaccurate information or flawed interpretations of information being cited by council members during the final public hearing phase and council discussion leading up to the split vote of denial. As to that split vote, as previously reported by Royal Examiner: “Mayor Lori Cockrell cast the decisive tie-breaking vote for the denial of ‘Skip’ Rogers motion to approve the proffer amendments. Voting with the mayor for denial were Melissa DeDomenico-Payne, Amber Morris, and Josh Ingram. Voting for approval with Rogers was Vice-Mayor Wayne Sealock and Bruce Rappaport.

At the time of the vote, Mayor Cockrell indicated her vote to deny was due to “heartburn” the mayor said she had over details of past withdrawals of original proffers by the applicant and a reported failure to pay a past agreed-upon sum to the county public school system for projected student number impacts.

In the opening page of its litigation, Heptad asserts that: “Council’s denial was arbitrary, capricious, unreasonable, unconstitutional and in violation of Virginia law.” It is also

noted that Heptad’s contract with Van Metre Communities LLC to purchase the property for development fell through as a direct result of the August 28, 2023, proffer amendment denial.

Stay tuned as we await a Town decision on the recusal offer of Judge Funk as June 3rd looms.