‘Writ of Mandamus’ Requests Order for Sweeping Payback
In a “writ of mandamus” petition filed in Fairfax Circuit Court Tuesday, an attorney representing three Fairfax County apartment users of City of Falls Church water called on the court to compel Falls Church’s Commissioner of the Revenue to initiate an immediate refund of alleged overcharges by F.C. Water not only to the three complainants, but to all users of F.C. water in Fairfax County.
Falls Church officials told the News-Press yesterday that since they had not been served with the writ, they could not comment.
Today’s filing followed a letter from the attorney, Timothy B. Hyland, to Falls Church Commissioner of the Revenue Tom Clinton dated Dec. 22, which demanded that Clinton “immediately carry out” his “statutory duty” to commence a refund, based on the Virginia Code that spells out, “In the event it comes or is brought to the attention of the commissioner of the revenue…that the assessment of any tax is improper or is based on a previous error and should be corrected in order that the ends of justice may be served,” the commissioner is compelled to act to initiate a refund. Hyland’s letter gave Clinton until Monday, Dec. 27, to respond.
In Tuesday’s court filing, Hyland notes that his letter to Clinton went unanswered by the deadline, thus compelling the court petition. The petition calls for “refunds of the unconstitutional taxes paid” by three plaintiffs represented by Hyland in individual complaints, and also “all others similarly situated,” which amounts to all Fairfax County users of Falls Church water.
The filings are based on the ruling by the Fairfax Circuit Court last January that stated Falls Church’s practice of taking a return on investment (ROI) from its provision of water services to over 100,000 Fairfax County customers constituted an “illegal tax” on those customers, and ordered the City to stop and refund the ROI amounts from its general fund back to its water system retroactive to two years. Hyland initiated individual complaint actions on behalf of three plaintiffs, Idylwood Village Section Two Limited Partnership, Providence Apartments LLC and Idylwood Gardens Associates LLC, after the Virginia Supreme Court upheld the circuit court ruling this fall.
In a statement in response to the complaints from individual entities seeking a refund, Falls Church’s Office of Communications issued the following statement:
“The City of Falls Church attorney is reviewing the demands by the Fairfax County government and Fairfax County residents for a refund, which raises significant and complicated issues. The court ruling did not address any refund but instead focused on the ROI issue. The City has not transferred monies from the water fund to the general fund since the court ruling in 2008. No decision has been made regarding requests by the (Fairfax) County government and (Fairfax) County residents.”
News-Press legal consultants noted that the state code citation contained in the “writ of mandamus” petition compels the Commissioner of the Revenue to return any improper or erroneous tax payment, but not an alleged overcharge on a water bill.
Confirming the point in the City’s statement, they also noted that the issue of repayment of alleged water fee overcharges was not contained the the court’s ruling against Falls Church in the water case last January.
While Judge Ney’s ruling referenced the ROI only, saying it “amounts to an unconstitutionally void tax on non-residents of the City,” and did not conclude that it was a tax, per se, such that the issue of a state code-mandated refund never arose.
Filings in the Fairfax Circuit Court by Hyland and at least one other Northern Virginia attorney (representing 20 individual plaintiffs and one business) premise their demands for refunds by alleging that overcharges of 15 percent (equivalent by their calculations with the ROI component of water service charges to Falls Church customers in the County) are taxes.
In addition, Rob Jackson, president of the McLean Citizens Association, issued an “alert” carried on the web site of the McLean Chamber of Commerce, suggesting to interested County users of Falls Church water to, “in order to protect one’s claim for refund…write a letter to to the City Manager (of Falls Church) and ask for a refund prior to Jan. 1, 2011.” It includes the address of F.C. City Manager Wyatt Shields, and notes that Fairfax County Supervisor John Foust advised him of the County’s request for a refund.
All the petitions to date have been filed with a Dec. 31 deadline in mind for including the calendar year of 2007 for potential refunds.
While Hyland introduced two complaints last week representing two large apartment complexes in Fairfax County, he added a third this week in addition to the sweeping “writ of mandamus.” A filing on behalf of the Idylwood Gardens Associates LLLP demands a refund totaling $22,781 for three years.
That comes on top of two earlier filings for County apartment complexes demanding a total of $99,558, and the demand from the County government (in the form of a letter, not a court filing) for $127,877.
Noting that the issue of a tax overcharge is fundamentally different from an alleged overcharge for a service provided, legal consultants told the News-Press that the merits of an alleged overcharge for service must address a number of factors, including the cost of water to the system, and it must be established that any alleged overcharge is egregiously out of conformity with rates charged by similar systems.