VIRGINIA BEACH — A three-judge panel ruled Friday that David Nygaard is no longer a member of City Council and was not eligible to run for office because of his residency.
The court vacated Nygaard’s seat on City Council after former City Councilman John Uhrin filed a lawsuit, claiming Nygaard did not intend to establish a permanent residence in the Beach District after renting an apartment on 20th Street.
The ruling comes after Virginia Beach administered a historic recount of three City Council races, including the contest between Uhrin and Nygaard.
According to the Virginia Codes governing elections after a seat is vacated, City Council will now appoint an interim council member until a special election occurs.
“I’m grateful that the judges ruled in our favor,” Uhrin said. “Virginia Beach is a huge city geographically, and a cornerstone of our governance is that we have people from around the entire area represented accordingly. What David (Nygaard) did was not right.”
Although Uhrin was pleased the court ruled in his favor, he was also displeased that he had to bring forth the lawsuit.
“It’s very unfortunate that the only remedy for a situation like this is that a candidate has to go through a very expensive lawsuit to be able to prove another candidate is not an ineligible resident,” Uhrin said.
In a four-page ruling on the case, signed by Judges Glenn Croshaw, W. Allan Sharrett, and Jeffrey W. Shaw, the court declared “there has been no valid election of any person” and that the Beach District council seat is now vacant as a result.
“When I moved into the Beach district, it was because I felt a deep desire to serve my fellow citizens as a member of City Council. The Judges said that because my intent in moving was primarily to run for office, that in their opinion, I did not meet the qualifications under the law,” Nygaard said in an emailed statement. “While I disagree with the logic of the court’s ruling, I respect their authority and the due process that I was afforded. Moving to dedicate your life to public service should not disqualify you from serving.”
The judges decided the case based on circumstantial evidence and the testimony of several witnesses.
“Nygaard did not testify in this matter, and indeed never appeared in the courtroom at any time during the proceeding,” according to the ruling. “Therefore the court must use mostly circumstantial evidence” in determining Nygaard’s intent when moving to his 20th Street apartment in the Beach District.
“Based upon an overall assessment of credibility” of witnesses who testified at the trial, “the court finds more credible testimony showing that Nygaard lacked the intent to permanently change his residence to 20th street.”
The judges noted the rental agent for Nygaard’s 20th Street apartment wrote “to establish residency” on the lease agreement, after Nygaard told her he needed the apartment by June merely to run for council.
According to the ruling, Nygaard also asked his son and son’s girlfriend to move into the apartment because no one was living there at the time, which showed “a lack of intent” on the part of Nygaard to change his residence to 20th Street.
Nygaard said he’s not done fighting.
“I’ve spent the last two months working day in and day out for the people of Virginia Beach. I’ve moved my jewelry business from Norfolk to my oceanfront apartment where I regularly meet with clients and hold constituent meetings,” he said. “The center of my life is at the Beach and that is where I intend for it to remain.”
In the aftermath of his courtroom win, Uhrin suggested the General Assembly pass legislation that would provide a process other than litigation to confirm a candidate’s residency.
“It shouldn’t fall on the backs of a candidate to verify the residency of their opponent,” Uhrin said. “There’s just no system in place, but there should be.”
Urhin said he is “still absorbing” the court’s ruling and is unsure whether he will run in the forthcoming special election to fill the City Council seat left by Nygaard.
Mayor Bobby Dyer said the city has received the ruling “and need to wait for the order to be entered,” adding he anticipates the matter to be an item on the March 19 City Council agenda.
“We have had to fill vacancies before and know that we have 45 days from the date of the order to appoint someone to serve until the special election can be held,” Dyer said. “We will be thoughtful and deliberate in selecting someone to fill this vacancy who will serve until the voters make their choice. I want to thank Mr. Nygaard for his service.”
A date for the special election has not yet been determined.
Nygaard said he “will be fighting to keep our seat at the table,” and to “consider my hat already in the ring.”