A property dispute that began a decade ago, resulting in a civil suit that’s been stewing in Mathews Circuit Court in one form or another for nearly seven years, was finally dismissed earlier this month at the request of both sides.
According to a letter in court records dated April 8, Mark and Candy Eubank of Doswell and Gwynn’s Island and three former Mathews County employees—county administrator Mindy Conner, planning and zoning director John Shaw, and wetlands administrator Sue Thomas—made a joint motion that the suit be dismissed with prejudice. A suit that’s dismissed with prejudice is permanently dismissed and can’t be brought back to court.
The dispute began in 2015 as a complaint by the Eubanks that people were congregating at Tin Can Alley, the beach adjacent to their vacation home on Gwynn’s Island. The Eubanks laid claim to the beach and blocked access, and the county asserted that the small area at the end of Old Ferry Road had a prescriptive easement for public access and ordered that access be granted. The public continued to use the beach, but further issues arose.
The Eubanks sued the Virginia Commissioner of Highways in 2016 over erosion that was occurring on their property related to the VDOT right-of-way at the end of Old Ferry Road, and they won the case. The court ordered that VDOT place a rock revetment adjacent to the couple’s property to prevent further erosion, along with ‘no parking’ signs along the end of the road. This effectively ended public access for anyone who needed to park there to use the beach.
Also in 2016, Shaw investigated a complaint about an alleged unpermitted addition made to the Eubanks’ cottage and found several zoning violations. Shaw issued a Notice of Zoning Violation to the couple, then retired from his position at the end of 2016 and was replaced by Thomas Jenkins, who continued to pursue the matter.
In 2017, after the Eubanks missed the deadline to appeal Shaw’s Notice of Zoning Violation, Jenkins issued them summonses to appear in court. The summonses were nolle prossed by Mathews Commonwealth’s Attorney Tom Bowen in 2016 and were expunged from court records in 2021. But Jenkins continued with civil charges against the couple, alleging four violations of the zoning ordinance for additions constructed without permits. The Eubanks then requested variances for the additions from the Mathews Board of Zoning Appeals.
The BZA, hearing the matter in 2017, made a split decision, upholding two of Jenkins’ decisions regarding the violations and denying two of his decisions. The Eubanks and the Mathews County Board of Supervisors each appealed the BZA’s decisions on the findings that went against them to Mathews Circuit Court. In 2018, the court found on the county’s behalf on all four decisions and ordered the Eubanks to remove all of the unpermitted structures.
Also in 2018, the Eubanks filed suit against Conner, Shaw, and Thomas, alleging that the county employees had engaged in a scheme to force them to tear down their house so the county could acquire their property for increased public access and charging them with malicious prosecution and abuse of process. They nonsuited that case, but brought it back again in 2019. In 2020, a hearing was held on a motion by the three defendants for dismissal of the case, and the judge granted their motion.
The Eubanks appealed the judge’s decision to the Virginia Supreme Court, which in 2021 affirmed dismissal of the abuse of process claim, but found that the portion of the case dealing with malicious prosecution should not have been dismissed without allowing the Eubanks their day in court.