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F.C. Wins Procedural Court Victory Vs. Fairfax Co. Water

Chief Justice Grants City a 3-Judge Panel

The City of Falls Church won a significant procedural court victory over the Fairfax Water Authority last week when no less than the Chief Justice of the Virginia Supreme Court granted the City’s request to have key components of the legal tangle involving the two jurisdictions’ water systems determined by a three-judge panel.

Chief Justice Grants City a 3-Judge Panel

The City of Falls Church won a significant procedural court victory over the Fairfax Water Authority last week when no less than the Chief Justice of the Virginia Supreme Court granted the City’s request to have key components of the legal tangle involving the two jurisdictions’ water systems determined by a three-judge panel.

“This is a welcome development” chimed Falls Church City Attorney John Foster in comments to the News-Press yesterday. Attorneys for Fairfax Water fought the move, and failed in their attempt to have it dismissed so that the case would move directly to a jury trial.

“The provision in Virginia law that provides for a three-judge panel remedy was established just for political water disputes like the one we’re having,” Foster said. The three-judge panel will convene in Hampton, Virginia at an as-yet undetermined time.

In a written statement, Foster said, “The significance for Falls Church is that this political dispute between the County (of Fairfax) and the City (of Falls Church) will be resolved where it should be – by a three-judge panel from outside the Northern Virginia area.”

The panel will hear arguments and rule on two of the three matters of contention in the lawsuit, which grew out of efforts by the Fairfax County Water System to violate what had been a decades-long boundary of service areas separating its system from that of the City of Falls Church. Since the 1930s, the City’s system has serviced households and businesses mostly in Fairfax County, including in Merrifield, Tysons Corner and McLean.

In 2006, the County began to market its water system for the first time to new developments on the Falls Church side of the long-established boundary, even offering to build redundant pipelines to customers traditionally covered by Falls Church’s existing pipeline system.

The county escalated its effort by making signing up with Fairfax Water a condition for a new development’s receipt of necessary zoning approvals or special exceptions from the county. The legality of this latest thrust is what Falls Church is challenging in court, and is one of the matters the three-judge panel will rule on.

The second matter pertains to the City’s effort to protect its property rights at the Hallsted, a new mixed-use project north of the Gallows Road and Route 29 intersection in Merrifield. The county has charged that the City is in legal violation for its efforts that Foster says involves protection of the City’s property rights in the form of its water line at that site.

A third matter in the legal dispute, the charge by Fairfax that the City of Falls Church cannot legally take a “return on investment” from its water system to supplement its annual operating budget, will not be part of the three-judge panel’s considerations, and will become part of the jury trial that is slated to begin in mid-August.

Also known as a “Special Court,” the three-judge panel ordered by Virginia Supreme Court Chief Justice Leroy R. Hassell, Sr., will “determine whether, among other things, the county’s efforts to accept proffers mandating connection to the county water system are not authorized under Virginia law,” Foster said in his written statement.

The City’s petition to the State Supreme Court for the panel, and the county’s rigorous opposition to it, and the Chief Justice’s rulings to both deny the county’s petition to dismiss the City’s request, and his ruling to establish the panel, were all handled through written communications, with no face-to-face court appearances involved.

However, both sides will argue their cases directly before the panel in Hampton, with the City’s efforts supplemented by its outside counsel contracted for the case, Alexander “Sandy” Thomas of Reed-Smith on Fairview Park Dr. in Falls Church.

Thomas and Foster were both present at the Falls Church City Council work session Monday to participate in a closed-session legal deliberation with the Council following the conclusion of the Council’s open session.

The Falls Church water system includes 450 miles of pipe covering 33 square miles, 30 of which are in Fairfax County. It has tanks at Dunn Loring, Tysons Corner, Lewinsville, Falls Hills, Prout Hill, Seven Corners and Willston, and pumping stations at Scotts Run, McLean, Chain Bridge, Chesterbrook, George Mason and Willston, all in Fairfax County.

 

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