One Step Closer to Closing Planned Parenthood in <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Charlottesville<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
J. Michael Sharman
Charlottesville's main abortion facility is one step closer to having its doors closed by a lawsuit brought by six landowners who objected to Planned Parenthood of the Blue Ridge being permitted to operate an abortion facility in their residential (R-10) neighborhood.
The case has been in the Albemarle County Circuit Court since November 5th, 2004, when the landowners' suit was filed. The reason it is a personal "yippee!" is because my firm and I represent the landowners.
The landowners were very concerned that the zoning variance originally approved by county authorities for construction of a building to house professional offices and apartments was actually being used for a Planned Parenthood center offering abortions, HIV testing, and treatment for sexually transmitted diseases.
Planned Parenthood filed a demurrer to the lawsuit claiming that the landowners had not completely gone through the administrative process and thus they could not file the circuit court action while at the same time filing their administrative appeal to the Board of Zoning Appeal's decision.
My response was that the administrative process did not apply to us because none of my clients had been given notice, and besides, the County Attorney had told them they had no appeal rights available to them.
Judge Peatross agreed with our argument and overruled the Demurrer, allowing the case to go forward against Planned Parenthood.
Planned Parenthood was then supposed to file their Answer to our Petition within 21 days of the Court's order dismissing their demurrer. They failed to do so. We then asked for default against them.
Planned Parenthood's lawyers told the judge that they failed to answer because there were two separate attorneys handling the case within their office and it just slipped through the cracks.
Judge Peatross issued a letter opinion on July 5th, 2005 ruling that Planned Parenthood was indeed in default.
After a default decree was entered against Planned Parenthood, Judge Peatross heard evidence and made a number of significant findings, which the judge then included in an April 19, 2006 Declaratory Judgment Decree declaring as a matter of law that:
- Planned Parenthood of the Blue Ridge, Inc. uses 2964 Hydraulic Road for a hospital or medical center in which to perform abortions and perform testing and counseling for HIV and treatment for sexually transmitted diseases.
- No special use permit has ever been requested for 2964 Hydraulic Road by anyone for it to be used as a hospital, physician's office, or medical center.
- The current use of the property bears essentially no resemblance to the use of the property which was presented to the Planning Commission and the Board of Supervisors for their approval.
- The actual uses of an abortion medical center and clinic for treating sexually transmitted diseases are not in keeping with the Neighborhood Model.
- The actual uses of an abortion medical center and clinic for treating sexually transmitted diseases are of substantial detriment to adjacent property.
- The actual use is not in harmony with the purpose and intent of the Zoning Ordinance or the Comprehensive Plan for this area.
That Declaratory Judgment Decree ruling is critical because a medical center is not permitted at all within the property's R-10 zoning and a hospital may only be there if a special use permit has been given for that specific use. For a special use permit to be granted, the use must be found to in keeping with the Neighborhood Model; not to be of substantial detriment to adjacent property; and in harmony with the purpose and intent of the Zoning Ordinance or the Comprehensive Plan for this area.
The landowners had also sued Albemarle County, and Judge Peatross had previously ruled that the County had acted properly and dismissed them from the case. Before the Declaratory Judgment Decree was entered, Planned Parenthood had also filed a motion for summary judgment asking the Court to grant the same ruling on the same grounds as it had for the County.
On July 25, 2007, Judge Peatross said, no sir, no way in judicial language, of course: "Planned Parenthood is in default. A defaulted party has no further rights to defend on the merits of the case. As noted by [the landowners] in their brief, ' a party against whom a valid and final default judgment has been rendered will not be heard to subsequently raise issues which might have been defenses on the merits of the Plaintiff's claim.'"
One or two more hearings and hopefully Planned Parenthood's doors will be shut.
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