By Erika Jacobson Moore
Residents file lawsuits to block plans for Aldie fire station
June 22, 2011
When the residents of Little River Farms purchased their homes a few years ago, they were happy to be moving into a new, high-end residential community that gave them a taste of rural life, with open areas and the privacy of thick tree lines. So when they discovered plans by the county to build the new Aldie fire station on two residential lots in their neighborhood they were shocked-especially when they learned that the purchase by the county had been done around the time, and in some cases before, they bought their own property and they were never informed.
Now, after years of attempting to learn what happened and work with the county and the developer, the residents of Little River Farms have filed two lawsuits in Loudoun Circuit Court–one claiming the lots are restricted by the covenants and scheme of development as laid out by the original developer, and a second filed early this month that asks the court to require a Commission Permit application to determine whether the fire station is in conformance with the county’s Comprehensive Plan.
“We don’t want to be NIMBYs,” Jonathan Redgrave, who is plaintiff on both lawsuits, said. “We thought some of the promises being made we could live with. But now everything has changed again. We hoped to find some resolution, but that just hasn’t happened.”
Living in a neighborhood located close to the intersections of Rt. 15 and Rt. 50, residents say they did their due diligence before purchasing their home-learning about the traffic on the Gilbert’s Corner roundabouts, the noise traffic would create, the lights from the weigh station on Rt. 50 and plans for other development in the area. Never, they say, did anyone in their neighborhood learn about a fire station.
“We were given covenants that said it was a single-family home neighborhood,” Robert Spicer, whose home is catty corner to the two lots on which the fire station is planned, said. “We were never disclosed at settlement that the county had bought those lots.”
The Spicers bought their home in October 2008, around the time the county was negotiating the purchase of the two sites. Resident Colette Oliver said the assessment did not show the change of ownership until March 2009. Redgrave and his wife bought their home in May 2009. At that time, he said, there were still For Sale signs on the front of the two lots, even though an application to consolidate them had been submitted in February. All the residents point out there has never been a sign on the property announcing it was county owned and the future site of the new fire station, as is often seen on other properties.
“If it is such a good location, why not announce it?” Lynn Oliver asked, standing with his neighbors in front of the property in the late evening. From the spot, both the Spicers’ and the Redgraves’ houses can be seen, and there is a house, which residents say used to be the model, immediately next door.
“What is so wrong with having a public hearing and listening to what the public has to say?” Spicer asked. If a Commission Permit were required, it would go through the public review process, including a hearing, and the Planning Commission would decide whether to approve or deny the application. The Board of Supervisors can ratify or override the commission’s decision with final action.
The timeline of resident and county property purchases was complicated by a foreclosure on the original developer that occurred in 2008. Little River Farms LLC set up 21 single-family home sites, and after foreclosure BB&T took over the property, with Stanley Martin doing the development for the bank. In September 2010, the bank sold the property to Stanley Martin.
An auction was held in December 2008, and it was there, residents say, that they first learned of the purchase by the county for the fire station.
Now that they know about the plans, residents say they have gotten nothing but stonewalling and pushback from the county as they try to understand how the site was chosen, what the plans are-and what they could be-and as they try to find a solution for their neighborhood.
One of the biggest concerns for residents is the safety of the location, given that their roads are not divided and have no sidewalks or pull off areas.
“We have a lot of little kids in this neighborhood, toddlers. And they want to ride their bikes. We walk our dogs,” Colette Oliver said. “What happens when a fire truck has to come speeding out to get to an emergency? How is that safe?”
The residents also are concerned about the impact the fire station will have on the community’s water supply, as all 21 lots are served by wells, as well as alternative septic systems.
Residents have met with Supervisor Jim Burton (I-Blue Ridge), county staff members and the Aldie fire company to discuss the plans, the improvements that would be needed and the citing of the facility on the property.
“We were told they would not have to improve the road, which we just don’t understand,” Lynn Oliver said.
“But to get a school bus and truck to pass now, you have to go off the road and into the grass,” Catherine Spicer said. “And they said there would be no traffic light.”
“And no traffic impact study,” Lynn Oliver added.
The Little River Farms community is zoned AR-2, which lists public safety facilities, including fire-rescue stations, as permitted uses-meaning the county can develop it by right, without legislative approval. Residents want a comprehensive look at all the potential properties in the area, to determine whether there is a better location for the station-which they say must exist. But county officials say an exhaustive search already was conducted.
“We spent several years looking for a site,” Burton said, noting there were some properties the county wanted to purchase but the owners were not willing to sell, or their asking price was many times what the property is worth. The county purchased the site for around $1.2 million, Nov. 20, 2008, according to the county’s tax records. “We have tried. We have tried to find a place where the station could be located, could be built that was still within their first due service area,” Burton said, and added that residents have not been able to present a viable alternative.
Given the lawsuits, county staff members would say little about the situation, but Department of Construction and Waste Management Director Lewis Rauch confirmed that the staff brought “at least three properties” to the Board of Supervisors for its consideration, and there were around seven that were considered but not brought to the board.
“There were three or four that were outside of the service area from the fire rescue guides. There was one on the back side of the development that emptied onto Rt. 15 but it did not work for VDOT because of the roundabout location,” Rauch said. “The service area that’s identified by the fire-rescue staff, it’s a small area. It’s not a large area. We rely on them to draw the circle and tell us where to look. And when we start to look there are not a lot of options.”
Burton noted the station has to move from its current location because there is no room to expand.
“They’ve had to buy smaller than standard fire trucks because standard fire trucks will not fit in the station. They cannot expand because the station is in the floodplain,” he said. “I think we have tried as hard as we could to find a workable and viable place. It works for the company and for the area.”
Burton said the county has attempted to make a number of concessions, including moving the facility as far back from the road as possible, adding berming to protect the residents and making the façade of the building fieldstone to match the surrounding houses. The company also has agreed not to turn on their sirens until they hit Rt. 50, to avoid impacting the neighbors.
“[Chairman Scott K.] York and I met with VDOT and tried to see if there could be a different entrance and exit from the site,” Burton added. “They would not agree. They might agree to closer to Rt. 50, but the only reason they would go through the community is if they were answering a call.”
But residents say they have been told conflicting information, including that an entrance closer to Rt. 50 was not possible and that the road could not be bermed for a fire station. They have expressed concern about the above-ground fuel station that would be located on the property, even though the county says it is perfectly safe, and points to others in existence, such as at the county landfill. Residents also point to emails between county staff members that note the land might be fractured bedrock, which cannot be used for a fuel station.
Even though the AR-2 zoning allows for the development of a fire station, because of the lack of disclosure to future residents, and the development plans that show the neighborhood as completely single-family homes, residents say the use is not appropriate in their community.
In February, residents sought the opinion of Zoning Administrator Dan Schardein on whether a Commission Permit would be needed to allow the station to move to construction. In a response dated Feb. 14, Schardein said there is “no Zoning Administrator determination that a Commission Permit would be required” for the station, but said in email correspondence with the fire-rescue department that the Planning Department staff had noted the planned station “would replace an existing facility within the same ‘Desired Location’ area specified on the ‘Public Facilities Map’ of the Revised General Plan.”
“As such, it was the Planning Department’s advice to the Department of Fire and Rescue that the location, character and extent of the replacement Aldie Fire and Rescue Station has already been established as being substantially in accord with the Comprehensive Plan,” Schardein wrote.
Indeed, in an email dated May 26, 2010, Assistant Director of Planning John Merrithew wrote the replacement station was in the same “Desired Location” as identified in the Revised General Plan, but that his email was “not an official determination.”
The residents, though their attorneys, appealed to the Board of Zoning Appeals, but were told their appeal had been forwarded to the County Attorney’s Office, which had advised that the BZA take no action on the appeal. That action, attorney Andrew Painter wrote in an April 13 letter to the BZA, “deprives [the residents] of procedural and statutory rights to which they are entitled.” Painter also noted the Feb. 14 letter from Schardein is an “implicit determination” that is subject to appeal.
May 2, Deputy County Attorney Ron Brown sent a memorandum to the BZA stating it is the county’s opinion that “there has been no order, requirement, decision or determination made by the Zoning Administrator or any administrative officer in the administration or enforcement of the zoning ordinance, and therefore, the BZA has no jurisdiction to hear the issues…”
In his memo, Brown also noted state code only requires a Commission Permit for “features not already shown on, or deemed to be shown on, the comprehensive plan.” Brown also notes the June 3 lawsuit regarding the Commission Permit issue is pending, and it is only before the court that the issue can be fully resolved.
Two days after Brown’s memo, BZA Vice Chairman James Purks sent an almost identical letter to Painter, responding to the residents’ request for an appeal.
In their lawsuit, the Redgraves claim that in its attempts to locate the fire station in Little River Farms, the county government is ignoring mandatory legal processes. The lawsuit states, “determinations as to such substantial conformity [with the Comprehensive Plan] cannot be made administratively, or made unreviewable by legislative or administrative fiat, for such conformity is a fundamentally necessary predicate to the construction, establishment, or authorization of certain public uses…” under the Virginia State Code.
The lawsuit goes on to state the Planning Department can only determine whether a facility is already shown on the Comprehensive Plan and not whether the proposed station is “substantially in accord” with the plan.
The lawsuit seeks declaratory judgment that such a determination can only be made through a Commission Permit; the county must either make an official determination that the station is shown on the Comprehensive Plan or obtain a Commission Permit; and the county’s failure to follow the Commission Permit process constitutes an illegal action.
As of press time, the county had not responded to the June 3 lawsuit, but it has sought a dismissal from the court of the first lawsuit-that which seeks declaratory judgment of equitable servitude. Equitable servitude means, according to the lawsuit, 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. Because the county was aware of the planned development, it too is bound by that plan and the covenants on the lots, the lawsuit states, and the county should be enjoined from using the lots for a non-residential use.
“Based on our review of the documents in this case it is clear to us that the developer intended all of the lots of the Little River Farms subdivision to be for single family residential use. And the county’s placement of a fire station in this subdivision would be inconsistent with that scheme of development,” attorney Andrew Burcher said. The lawsuit also notes that all ongoing marketing of the community states it is a single family, residential neighborhood and makes no reference to the fire station.
But the county maintains to enforce equitable servitude the parties “have actual or constructive notice of the restriction or covenant prior to purchasing its property.” The county notes in its request for demurrer that the deeds submitted by the residents do not show any reference to restrictive covenants that require single-family homes on the property. Residents say oversight in submitting such a declaration was a mistake by the developer.
The county states advertisements and notes on a subdivision plat cannot be used to legally bind the county to building a single-family home.
“The actions of the developer, as reflected in the pleadings, fall short of showing intent to restrict the Little River Farms subdivision for single family residential use only,” the county’s motion reads.
That suit is set for trial Nov. 9-10.