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Speech unleashed: Defamation claim against planning official dismissed

Peter Vieth//May 19, 2014

Speech unleashed: Defamation claim against planning official dismissed

Peter Vieth//May 19, 2014

Anchor art 051914A local planning commissioner has immunity from a defamation suit filed by a lawyer who was seeking approval for a dog rescue operation, a Virginia circuit court says.

The commissioner lived less than a mile from the proposed kennel and was critical of the proposal and the permit applicants, in comments to a local newspaper and in emails obtained through a Freedom of Information request.

Clarke County Circuit Judge John E. Wetsel Jr. dismissed the defamation suit, holding that the planning commissioner enjoyed the same “legislative immunity” as county supervisors.

It’s the first direct ruling that appointed local planning commissioners are shielded by immunity under Virginia law, according to briefs in the case.

The ruling is a setback for Tysons Corner lawyer and dog lover Gina L. Schaecher, who sued after the planning commission disapproved her request to operate the kennel.

Controversy over kennel request

The proposal for a kennel and animal rescue facility was a lightning rod in the rural county east of Winchester. Around 45 people offered their views on the plan when it came before the county board of supervisors this year.

The board turned thumbs down on the project on April 15.

Before the proposal ever came to the board, however, it stirred reaction at the planning commission stage.

Schaecher and her company, Happy Tails Development LLC, asked the county for a special use permit for what they termed a “small animal rehabilitation facility.”

Schaecher hoped to buy a 91-acre site near the town of Boyce and use three acres for the kennel. The area is mostly farmland or open space.

One planning commissioner, Robina Rich Bouffault, lived less than a mile from the proposed kennel site and sought to undermine the proposal, Schaecher alleged in her lawsuit.

Schaecher claimed Bouffault made a series of “false, misleading and defamatory” statements to other county officials and to a local newspaper to “promote her own personal self interest” in blocking the kennel.

Without waiting for government action on the permit, Schaecher sued Bouffault as an individual, not in her official capacity.

Among the statements alleged by Schaecher:

  • The project would be prohibited by a conservation easement.
  • Forty dogs barking “would probably constitute noise pollution.”
  • Schaecher was “not totally truthful” about a permit for a kennel operation in an adjoining county.
  • The project would be prohibited under private restrictive covenants.
  • The proposed tenant on the property (Schaecher’s sister) might have trouble paying the mortgage.
  • Schaecher was “lying” and manipulating facts.

Many of the statements cited by Schaecher were in emails sent to various county officials.

“We were unaware what was being said about us until we conducted a Freedom of Information Act request,” Schaecher said in an interview.

Planning commission disapproved

Less than a week after Schaecher filed suit, on Bouffault’s motion, the planning commission voted 5-4 to recommend denial of the permit needed for the kennel. Two planning commissioners abstained.

Bouffault also should have recused herself for conflict of interest, Schaecher said in a letter to the county planning director. The county planning staff later recommended approval of the permit because the kennel proposal met the technical requirements of the county zoning law.

In the meantime, Schaecher and Bouffault crossed swords in court, as Bouffault asked Wetsel to dismiss the lawsuit on the pleadings.

“The plaintiffs are obviously using this litigation to put pressure on the legislative body to accede to their demands,” wrote Julia B. Judkins of Fairfax on behalf of Bouffault.

The court should not inquire into Bouffault’s motives because all the alleged statements pertained directly to the permit application under consideration by Bouffault and other commission members, Judkins argued.

Individual members of the planning commission – investigating and reporting on special use permit applications – are entitled to legislative immunity, Judkins said.

No case law supported that proposition, responded Schaecher in a brief signed by co-counsel Stephen J. Annino of Tysons Corner.

Bouffault was inviting the court to make a “legal leap” to conclude that she was entitled to the same immunity as members of legislative bodies, Schaecher said. Schaecher also argued that Bouffault could not be shielded by legislative immunity for intentional torts.

While the defamation issue was pending in court, the board of supervisors rejected on the kennel plan.

Applicant can re-plead

Wetsel acted May 7 with a brief order in Schaecher v. Bouffault (VLW 014-8-054).

He sustained Bouffault’s demurrer as to all counts. Wetsel said the most significant reason was that “the statements and actions complained of were committed incident to the performance of a legislative function” of Bouffault as a member of the planning commission.

Wetsel allowed Schaecher to file an amended complaint.

“We do intend to do that,” Schaecher said. She contended Bouffault’s statements went beyond her role as a commissioner and reflected her personal position.

“She was not conducting the obligations of her position. She was operating based on her own personal self-interest,” Schaecher said in an interview.

As for the special use permit? “We’re still evaluating our options at this point,” Schaecher said.

Schaecher lamented that many people support the concept of animal rescue, but, with neighborhood opposition, “it’s become virtually impossible to locate a kennel anywhere.”

Wetsel’s decision will be welcomed by local governing bodies and their planning commissions, said Sharon E. Pandak of Woodbridge, a veteran Virginia local government lawyer.

While the circuit court decision is not binding precedent, “I believe it is the first in Virginia to apply the doctrine of legislative immunity to a planning commissioner,” Pandak said.

A different result “could open a floodgate” for allegations of defamation against local officials in the often contentious process of land-use decision making, Pandak said.

Despite the win for Bouffault, the litigation sends a “message of caution” to members of governing bodies, Pandak said. “Officials who are not judicious in making comments may find themselves embroiled in litigation, at least temporarily,” she said.

VLW 014-8-054

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