By mid-August, a developer should know whether he’ll be allowed to construct a 38-home subdivision near Middleburg—or whether he’ll need to sue the town to move forward with those plans.

The Middleburg Planning Commission on Monday night voted unanimously, with Commissioner Mimi Stein absent, to table a vote on the Banbury Cross Reserve preliminary subdivision application, which includes 38 residential lots on a portion of a 571-acre property about a mile east of town. The vote was tabled to give the developer—Middleburg Land 1, which is managed by Andrew Hertneky—more time to provide the commission with additional information on the project.

The Planning Commission plans to reconvene Aug. 10 to take a vote.

Hertneky has proposed to build 28 cluster lots ranging from 2 to 4 acres and 10 rural economy lots between 25 and 70 acres. He also proposed to set aside close to 70 acres for five open space lots.

Although the 571-acre property sits outside the town limits, a majority of the proposed lots are within the town’s extraterritorial subdivision control area—land that falls under the purview of not only county regulations, but also the town’s subdivision ordinance if it’s located within a mile of town.

This is the second time the commission has reviewed the application. The first time was in September 2019 when it voted to deny the project. Since then, Hertneky resubmitted the preliminary subdivision application and received conditional approval from the county zoning staff.

Deputy Town Manager Will Moore in September, and again on Monday night, emphasized to commissioners that the vote should be ministerial in nature and that it can not be a discretionary action or land use policy decision. That’s because, under Virginia law, if such an application is in technical compliance with town and county regulations, the Planning Commission is obligated to approve it.

On Monday, three hours of public comment ensued from 40 area residents, most of whom spoke in opposition to the proposed development.

Opposition came not only from area residents, but also from Mayor Bridge Littleton and leaders of regional organizations, including the Piedmont Environmental Council, the Goose Creek Association, Save Rural Loudoun, Concerned Citizens in Opposition to Banbury Cross Reserve Development and the Loudoun NAACP. Common among their stated concerns were that the development could threaten the area’s water supply, diminish its rural character, inhibit other properties’ eligibility for historic designation and adversely affect road safety.

Emotions ran high at times during those comments, which were given mainly via phone. At one point, a speaker unmuted herself to call another speaker an “idiot” as she was expressing concerns about her groundwater supply.

Jim Nichols, a resident along Sam Fred Road, expressed concern for the safety of drivers who would turn on and off Rt. 50 to access the development, noting several deaths in years past when a development was built off Rt. 15. “People will die at some point in time,” he said.

Former councilwoman Bundles Murdock said the town needs to fight to maintain its small-town feeling.“Land built on is land lost forever. We can never get it back,” she said.

Another speaker who lives a quarter mile from the Banbury property said, “no one comes to Middleburg to see more Fairfax.” He added that his two wells have run dry in recent years and that the development could push water supply issues “from bad to critical.”

John Lovegrove, a member of thegroup Save Rural Loudoun, said the development would remove 2.5 percent of the remaining “prime farmland” in Loudoun, noting that there are only about 220,000 acres of remaining agricultural land in the county.

The Piedmont Environmental Council raised concerns that the proposed 38 lots are located on 74 acres of “prime agricultural soil,” according to its data. The Goose Creek Association and the Loudoun County Preservation and Conservation Coalition expressed similar concerns.

The Mosby Heritage Area Association is concerned that the historic Nellie Church House on the property, which is eligible for listing on the National Register of Historic Places, might not be protected.

Some residents are also concerned Hertneky will eventually build commercial uses. Hertneky said he was open to talking about his intentions to limit that type of development. He mentioned that he could build horse stables, which would be considered a commercial use, but would fit in with the surrounding environment and culture.

More generally, Littleton said the county’s cluster subdivision option is failing the rural west and will “ultimately lead to the demise of western Loudoun as we know it.”

But Carters Farm Lane resident Audrey Wilde pointed out that “Loudoun County is growing and we can’t stop that.” She said Hertneky’s proposal keeps a majority of the land on the property open and rural, preserving open space and wildlife habitats. She said that’s why the county encourages cluster communities in rural areas.

Breanna Gunnell, another Carters Farm Lane resident, said the area needs more housing options. She charged those who spoke in opposition to the development with fabricating issues to sway the Planning Commission’s vote.

“Ten years from now you will all look back and see how beneficial this development was for our town,” she said.

Less discussed during Monday’s public hearing is the concern that slave graves might be present on the property.

According to a June 3 report from Loudoun County Archaeologist Steve Thompson, three slave owners lived on a portion of or near the present-day Banbury Cross property, owning a total of 36 slaves between them. One also owned two slave houses that “must have been located within the current subject property,” according to Thompson’s report.

“It is possible that residences (and cemeteries) for enslaved persons belonging to [the three slave owners] were located within the subject property, yet such sites remain wholly unidentified,” Thompson wrote.

The Planning Commission in the next two weeks also plans to discuss whether a lawsuit filed against Hertneky on July 27 challenging his ownership of the property could factor into its Aug. 10 vote.

If the commission at that point votes to deny Hertneky’s application, it’s almost certain he will sue the town. Nick Albu, a land use attorney representing Middleburg Land 1, said Monday night that if the commission denied the application, litigation would ensue.

“In the event that this application is disapproved, that would be the unfortunate reality,” he said.

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