Posted by: Patricia Salkin | July 17, 2013

VA Supreme Court Holds Directors of Washington Metro Area Transit Authority Were Not Barred From Voting as Members of the Board of Supervisors on the Authority’s Application for a Special Exception

In 2010 Iskalo sought a special exception to build a Washington Metropolitan Area Transit Authority (WMATA) bus maintenance facility in Fairfax County. The parcel consists of 5.32 acres in the R–1 zoning district and 12.05 acres in the I–6 zoning district. After a hearing, the planning commission approved the facility as substantially in accord with the comprehensive plan and recommended approval by the board of supervisors. Newberry Station is a residential community situated a mile from the proposed facility and between 140 feet and a quarter-mile from the road over which the bus traffic would travel. The Newberry Station home owners association submitted comments recommending that the board reject the application. At a public hearing, the board’s chairman and Supervisor Cook disclosed that they had received campaign contributions from attorneys representing Iskalo. Supervisor Hudgins disclosed that she was a principal director of WMATA and Supervisor McKay disclosed that he was an alternate director of WMATA. At a later meeting, the board approved the application by a vote of six to three. The chairman abstained. The three supervisors who had made disclosures voted to approve the application. The home owners association sought a declaratory judgment that the approval was void and an injunction barring construction. The court found that Code § 15.2–852(A) required the disclosures but did not require the supervisors to recuse themselves because they did not have a conflicting business or financial interest covered by the statute and that the evidence was sufficient to establish that approval was fairly debatable. The highest court affirmed, holding that a relationship with WMATA did not constitute a “business and financial interest” and that WMATA is not a “corporation” within meaning of the statute. Upholding the approval as reasonable, the court stated that there was sufficient evidence that an open space requirement would be met and that the zoning ordinance merely required the board to consider the effect of noise in residential areas and did not require it to enforce the noise ordinance through zoning. WMATA’s asserted failure to include in a listing of hazardous or toxic substances to be generated, utilized, stored, treated, or disposed of on-site did not affect reasonableness of the approval.

Note: This summary appears in the July 2013 Issue of Planning & Environmental Law.  For subscription information see:

Newberry Station Homeowners Ass’n, Inc. v. Bd. of Supervisors of Fairfax County, 2013 WL 1687515 (VA 4/18/2013).

The opinion can be accessed at:

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