WATER WAR: Fairfax Files Rebuttal to City’s Appeal

By GEORGE BROMLEY
Falls Church Times Staff

April 26, 2010

Today the Fairfax County Water Authority filed a brief in response to Falls Church’s appeal of the decision of the Fairfax Circuit Court that the City’s water rates are designed to generate surplus revenues and pose an illegal tax on County residents.  Judge R. Terrence Ney’s January 6 ruling also struck down a sentence in the City’s charter which allowed it to transfer surpluses from its water fund to its general fund as a “return on equity.”   

In arguing that the City’s petition to the Virginia Supreme Court should be denied, Fairfax Water contends that there was no “reversible error” and maintains that the appeal “is riddled with procedural error.”   Citing over two dozen cases, the rebuttal defends Judge Ney’s ruling that the City’s water system practices were “plainly unconstitutional.” 

The brief concludes in part that “It is extremely unusual for a city water system to have a customer base that is overwhelmingly comprised of non-city residents (92%).  Falls Church capitalized on that imbalance – and on its one-of-a-kind charter provision (13.07) – by charging an inflated water rate to all its customers, reaping huge profits that allowed it to drastically reduce the local tax burden on its own citizens.”

Falls Church’s appeal argues that the claim of a Charter violation was not properly before the court, because it was never pleaded and was first raised in the middle of the trial.  The City’s appeal also contends that the operation of its water utility is a proprietary, not a governmental, function and that Falls Church is not imposing a “tax” on non-resident water customers, because it does not require them to connect to its system.

Fairfax Water filed its amended five count complaint against the City in January 2009.  One count was subsequently dropped.  The matter under appeal was tried last September.  Judge Ney handed down his ruling against Falls Church on January 6.   Trial on three other counts was suspended in February and the parties later reached a settlement on those issues.  The City filed its position to appeal to the Virginia Supreme Court on  April 6.

That Court likely will grant a hearing on the two petitions this summer.  If the City’s petition is accepted, the full Court will hear arguments later this year.  Falls Church’s petition is posted on the City’s website.  Fairfax Water’s rebuttal brief is posted on the Authority’s website.

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April 27, 2010 

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