THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Wednesday, June 7, 1995                TAG: 9506070456
SECTION: LOCAL                    PAGE: B1   EDITION: FINAL 
SOURCE: BY DEBBIE MESSINA, STAFF WRITER 
DATELINE: VIRGINIA BEACH                     LENGTH: Medium:   62 lines

JUDGE WINS ROUND FOUR IN BEACH ZONING DISPUTE THE COURT ALLOWS HIS NORTH END HOME TO BE BUILT DESPITE NEIGHBORS' APPEALS.

Neighbors failed to block a federal judge from building his retirement home on a re-subdivided waterfront lot when the Circuit Court ruled Tuesday that a 60-year-old deed restriction did not apply.

It was the fourth in a series of battles fought between influential North End neighbors. While Henry C. Morgan Jr. did not get everything he sought, he did each time win permission to build a three-story house on a 5,000-square-foot lot on 52nd Street.

Neighbors opposed Morgan at a Chesapeake Bay Preservation Area Board hearing and a Board of Zoning Appeals hearing last fall. When they were unsuccessful, they appealed the zoning board's decision to the Circuit Court. The court ruled in favor of Morgan last month.

In this latest round, the neighbors tried to stop Morgan from building his Charleston-style home by citing a deed restriction in Circuit Court.

Morgan's retirement home is to be built on a lot that he re-subdivided from a lot on which his current home stands. That home is now for sale.

The 1935 deed establishing the neighborhood, Ubermeer Annex No. 1, states that, ``Not more than one residence, exclusive of out-buildings, shall be erected on one lot.''

Joseph W. Hood Jr., an attorney who represented the neighbors, said that precludes Morgan from building on the re-subdivided lot.

But Morgan's attorneys argued that other language in that deed ran contradictory to the one residence-one lot provision. So, they argued, the developer intended to allow re-subdivisions and additional residences.

R.J. Nutter, one of Morgan's attorneys, said, ``It's a simple case of interpretation of restrictions. We will have no more than one residence on one lot.''

Judge William G. Plummer, a retired judge from Fairfax, was called in to hear the case after local judges excused themselves citing their association with Morgan. Plummer ruled that the deed restrictions were ambiguous and that subsequent actions by the developer indicated that re-subdivisions are permitted.

One year after writing the deed restrictions, Plummer noted, the original developer subdivided one of the other lots in the neighborhood and sold the two sections to two different people.

Hood, however, maintains that such action decreased housing density, as three lots were made into two. Morgan's action, he said, increases housing density, making two lots out of one.

``The intention was to make this a nice place,'' Hood said, noting the large lot sizes.

Hood said he has yet to discuss with his clients whether they will appeal either court decision.

``We hope this is the end of this case,'' Nutter said after the hearing. ``Mr. and Mrs. Morgan have been through a great deal.''

Testimony revealed that the neighborhood was once a close-knit community with many block parties.

``We hope the neighborhood can start rebuilding and healing,'' Nutter said. by CNB