Posted by: Patricia Salkin | October 28, 2013

VA Supreme Court Finds Recusal Not Required for Three Board of Supervisor Members Who Disclosed Relationships With Governmental Applicant and its Attorney

In 2010, Iskalo CBR, LLC (Iskalo) filed an application for a special exception to build a Washington Metropolitan Area Transit Authority (WMATA) bus maintenance facility on a parcel of land in Fairfax County. After a public hearing, the planning commission approved the facility as being substantially in accord with the comprehensive plan and thus recommended approval of the application by the board of supervisors (the Board).

The plan was not well received by the inhabitants of Newberry Station, a residential community situated a mile from the proposed facility and less than a quarter-mile from the road over which the bus traffic would flow. Newberry Station contended throughout the approval process that the facility would significantly increase vehicular traffic over the road, both due to the buses and the cars of employees throughout the day and night. The Newberry Station Homeowner’s Association submitted official comments to the Board, recommending they overturn the planning commission’s approval.

The Board approved the application but not before three of its members made disclosures to the public regarding their personal or professional interest or relationship with the project itself or Iskalo. The Board’s chairman and a supervisor disclosed that they had received campaign contributions from Iskalo’s attorneys and two other members disclosed that they were directors of WMATA. The vote passed 6-3 with the Board’s chairman abstaining from the vote while the three supervisors who had made disclosures voted to approve the application.

The Newberry Station Homeowners Association filed a complaint seeking declaratory judgment that the Board’s approval of the application was void and injunction barring construction of the facility. They argued that the County Code required the interested board members recuse themselves from consideration of the application. The Board argued that the code did not require the supervisors to recuse themselves because they did not have a conflicting business or financial interest covered by the statute. The circuit court sustained the Board’s argument and Newberry Station appealed.

Newberry Station’s first and main argument is that the interested supervisors were required to recuse themselves from consideration because they each had a conflict of interest. The Board’s argument in response is the language of the statute, which requires recusal pertains to instances if a “business or financial relationship” and does not require recusal for “business or financial interest.” This issue, being statutory in nature, leads the Court to first analyze whether the plain meaning of the statute could determine whether there is a clear difference between the use of relationship and interest. The Court, after determining the language of the statute to be ambiguous due to the compelling arguments made by both parties, looked to the legislative history of the statute and determined that there was no intent by the legislature for the two phrases to have different meanings. However, the Court affirmed the circuit court’s decision because WMATA is a governmental agency created by a pact between Maryland, Virginia and Washington D.C. and as such it affords no opportunity for financial benefit to its unpaid directors. Without the financial benefit to its directors, WMATA does not fall under the statute’s definition of “corporation”. Thus, the Court holds it was not improper for the supervisors to participate in the consideration process.

Newberry Station also argued that the Board approved the application without sufficient evidence. In particular they alleged that the Board’s actions were arbitrary and capricious because its action was undertaken in violation of an existing ordinance. The Court rejects this argument, stating that the special exception application was within the authority granted to the Board and therefore not in violation of an ordinance. Newberry Station also argued that the Board had failed to properly consider open space, noise and hazardous materials. The Court rejected these contentions because there was ample evidence of consideration of open space and noise, while the statute at issue placed no burden on the Board to consider the hazardous materials, instead it places an obligation on the applicant to list toxic substances.

Newberry Station Homeowners Ass’n, Inc. v. Board of Supervisors of Fairfax County, 285 Va. 604 (4/28/2013).

This opinion may be accessed at

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