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Resident's lawsuit against expanding University Village thrown out

Seventeen months after suing to block the board of directors at University Village, an upscale retirement home west of Charlottesville, from beginning construction on a third phase, Phase II homeowner Daniel Lavering found himself hiring an appeals lawyer after a judge tossed his suit Monday.

“I have retained Jim Knicely of Williamsburg, an experienced appellate attorney who has appeared before the Virginia Supreme Court in several cases, to handle my appeal to the Virginia Court of Appeals,” Lavering told The Daily Progress in a morning-after email.

The hiring came after Albemarle County Circuit Judge Cheryl Higgins granted the partial summary judgment sought by the board. The judge’s ruling appears to let the board move forward with the permission of just 75% of the owners — and not 100% as Lavering had alleged they would need — to grow the green-roofed structure at the crest of a hill off Old Ivy Road.

“It would make no sense to the court,” said Higgins, “that a board of a unit ownership association would be so limited.”

Lavering’s lawyer had argued that the board lost its right to expand the facility just seven years after the developer filed the inception papers in 1991. However, Higgins ruled that only the original developer was bound by that seven-year deadline.

“There is no time limit,” said Higgins. “It can be extended by whatever entity is now the controlling entity of the property.”

Delivering her ruling after a 75-minute hearing and a 45-minute recess to ponder the situation, Higgins found that Lavering’s lawyer, John Simpson, was too narrowly interpreting the controlling state law when he focused on the rights of the “declarant.”

“Who is defined as a declarant?” rhetorically asked Higgins, who went on to assert that the declarant was University Village Inc., the business that initially developed the 28-acre property. By contrast, said Higgins, the suit’s defendant was a nonstock, nonprofit corporation called University Village Owners Association.

“The judge gave a very careful ruling that was consistent with the law,” the association’s lawyer, Falls Church-based Marla J. Diaz, told the The Daily Progress as she emerged from the Albemarle County Courthouse.

Lavering had alleged that expanding University Village from its current size of 94 two-bedroom condominiums would harm the “marketability” of his condo unit and dilute his stake in the “common elements.”

Left unsaid in his complaint was that many of the condos in these two six-story, brick-skinned wings would lose a portion of their panorama if the planned third wing were built. Also left unsaid in the primarily legal theory-laden hearing was that a resident’s golden years might be diminished by a construction project happening beside their half-million-dollar condo.

Charlottesville real estate attorney Cheri Lewis, who has a speciality in condominium law, says she’s looking forward to seeing what happens in the appeal.

“The ruling in this case is of particular interest because the Virginia Condominium Act only authorizes a condominium to expand in accordance with its Declaration or official governing document,” she wrote to The Daily Progress in an email.

Like Lavering, Lewis takes issue with the judge’s ruling.

“University Village’s Declaration clearly gives that right only to the declarant/developer and not to the owners or the Association,” Lewis wrote. “And the Declaration is clear that the time period to expand was limited to seven years.”


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