A useless land parcel in Aldie

By Erika Jacobson Moore

Leesburg Today

Wednesday, Dec. 7, 2011

A ruling by Circuit Court Judge Burke F. McCahill has left the county unable to use its purchased site in Little River Farms on Rt. 50 for the location of the new Aldie Fire Station.

A two-day trial early last month focused on whether the two home sites in Little River Farms were restricted by covenants to residential units when the county purchased them in 2008-and whether the county was aware of such restrictions.

Friday, in a written ruling, McCahill enjoined the county from using the property for any non-single family home residential use. The residents were seeking equitable servitude, which McCahill granted, which means that the scheme of development cannot be changed once it has begun-in this case once single-family homes were bought and constructed according to the plan.

The suit against the county was brought by a group of Little River Farms residents after they discovered that the lots in their community had been sold with the purpose of putting in a fire station. The county purchased the site for around $1.2 million, Nov. 20, 2008, according to the county’s tax records

That fact was never given to any of the residents when they purchased their homes, they said, even those who bought after the 2008 sale, and they noted they were given covenants that showed the lots as being intended for residential uses.

However, the county maintained that it did not have “actual or corrective notice of the restriction or covenant prior to purchasing its property” and noted that deeds for the properties in the neighborhoods do not show any restrictions.

While acknowledging that is true, McCahill stated in his ruling that fact was immaterial and was not enough to find in favor of the county.

“…the Developer testified that the Covenants, which do expressly restrict the use of the property to residential, were intended to be recorded and that it was the intent to restrict the use to residential,” McCahill wrote. “Corroborating evidence, such as the sewage and water permits submitted to the County, the site plan, and the testimony of the homeowners, supports the conclusion that the Developer intended to restrict the use to residential.”

McCahill also noted in his ruling that the county should have been aware of the restriction even without the recordation on the deeds because it was party to the creation of Little River Farms and its scheme of development. In addition, he said, the county’s due diligence before purchasing the two lots also would have brought up that information.

“As part of this review, the County had access to the Developer’s file, which included the unrecorded Covenants,” McCahill wrote. “The Covenants, although not appearing on the record, should have put the County on inquiry that Little River Farms was intended to be restricted to residential use.”

McCahill also reiterated the testimony of two county employees that were part of the search team for a location for the new Aldie First Station. They said they viewed Little River Farms as a residential neighborhood. He also said the county’s own expert’s testimony that a title search did not bring up any information about use restrictions is not a “safe haven” because if the recordation existed, the residents would not have been seeking equitable servitude.

The judge also rejected the county’s argument that the fire-rescue station use is permitted under the county’s Zoning Ordinance for that same reason. McCahill wrote that an allowed use under the Zoning Ordinance does not change whether the use was restricted under equitable servitude.

“The inquiry remains whether the County had notice that Little River Farms was intended to be restricted to residential use,” McCahill wrote. “Based on the evidence the Court believes that the County was on notice of the intended restriction.”

It is not yet clear what impact this will have on the timing of a new station for the Aldie Volunteer Fire-Rescue Company, or what the next steps will be for the county. Supervisors were briefed on the issue, and the county’s options, during the closed session of Tuesday’s business meeting, but no decisions have been made. Because of the ongoing legal matters there is little county staff or fire-rescue administrators can say about the future of the station or what will happen, but some did express disappointment in McCahill’s ruling.

Residents on the other hand were nothing but pleased with McCahill’s opinion.

“We think that it is very consistent with the evidence that went in before the court. The plain facts stack up with established law in Virginia,” resident and plaintiff Jonathan Redgrave said.

If the county does choose to appeal the decision that choice will be made by the next Board of Supervisors as the current board has canceled its second business meeting in December. And if an appeal is filed, it will likely be a long time before a decision is made in the matter by a higher court-and before a fire station could ever be built on the property. If the county does not appeal, it likely will also make moot the residents’ second lawsuit against the county, which contends the county should have sought a Commission Permit to determine whether the location fit with the county’s Comprehensive Plan before moving forward with the site.

Either way, Redgrave said, it gets residents “to the point we wanted to be in the first place.”

“For homeowners who felt it was unfair, [the ruling] is a heartwarming affirmation that the system can work,” he said. “I hope this could be put behind everyone and the property can be used for the proper use and we can get to finding where a new station could be placed that fits with the Comprehensive Plan.”

The new station is needed to replace the existing one closer to the Town of Aldie, which allows no further room to expand because the station is in the floodplain. That fact has led to consistent flooding at the station and the fire trucks are smaller than standard equipment because larger ones will not fit in the station.

Several locations within the service area for the Aldie company that is indentifed by Loudoun County Fire-Rescue were considered for the site, but deemed too expensive or less useful than the Little River Farms location.

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