F.C. City Wins Right to Sue Fairfax Sups in Water Battle

The David-like City of Falls Church, fighting on behalf of its 11,400 residents, and its water system won a major victory Friday in a preliminary hearing in the unfolding court fight with the Goliath-like Fairfax County, with over a million residents, over competition for water customers.

Judge Leslie Alden of the Circuit Court of Fairfax County ruled Friday that Falls Church’s counter-suit, including the naming of the Fairfax County Board of Supervisors in addition to its water system, shall be joined to the case.

The Falls Church counter-suit charges that the Fairfax Board of Supervisors is responsible for the county’s alleged policy of “encouraging or requiring” that developers hook up with the county water system as a condition for gaining zoning and other approvals.

According to a statement provided the News-Press yesterday from F.C. City Manager Wyatt Shields, “The Circuit Court of Fairfax County on Friday, May 22, approved the City of Falls church request that the Fairfax County Board of Supervisors be added as a third party to the Fairfax County Water Authority (FCWA) lawsuit against the City, to address the City’s complaint that the County is using proffers to unfairly favor Fairfax Water in violation of Virginia law and the Virginia Constitution.”

“The motion for leave to amend is granted and the third party complaint and counterclaim are deemed filed as of May 22, 2009, the Court finding that the County and Board of Supervisors are necessary parties” Judge Alden wrote in her ruling.

She ruled that the County and Board of Supervisors can seek a continuance of the trial date if they wish, and can elect to be joined in the suit “either as an involuntary plaintiff, or defendant.”

The judge noted the objections raised by attorneys for the FCWA, Stuart A. Raphael, Jill M. Dennis and Patricia M. Moody of the Hunton and Williams, LLP, law firm based in McLean, and by Fairfax County Senior Assistant County Attorney Cynthia Frantz for the County and Board of Supervisors.

Alexander Y. Thomas, Richard D. Holzheimer and Brent R. Gary of the Reed Smith, LLP, law firm of the Fairview Park section of greater Falls Church represented Falls Church.

There are no other hearings set at this time prior to the commencement of the trial slated, at this time, for mid-August.

The City of Falls Church has set aside as much as $1.5 million for legal costs to fight the case, precipitated when a decades-old agreement between the City and County to honor a boundary line between their respective water service areas broke down. In 2006, the County began bidding for business on the Falls Church side of the line in Fairfax County, where the City has over 100,000 customers. According to the City, the County began leaning on developers to insist on signing on with Fairfax as a condition for necessary approvals from the County for their projects.