Water War — Having Lost One Lawsuit, City Files Another

Having lost in court against the Fairfax County Water Authority (FCWA), the City of Falls Church now is suing Fairfax County.

In response to FCWA’s litigation against Falls Church, the City has filed a counter-suit against the Water Authority and has named both the County and the Fairfax Board of Supervisors as co-defendants.

Filed in Fairfax Circuit Court, the City’s petition accuses Fairfax of making proffers for special exceptions on new developments conditional on using FCWA’s water service, a process which City Manager Wyatt Shields has termed “coercive.”

The filing in part states such actions “.  .  are pursued solely for the unreasonable, unlawful, and unconditional purpose of favoring Fairfax Water over the City’s water service, attempting to drive the City out of water service in the County, and withholding approval for the City to exercise its statutory right to operate and expand its water system in the County.”

In a related development, the City petitioned the Virginia Supreme Court earlier this month to convene a special court to “.  .  balance the equities of this case, including the matters set forth in the FCWA Fairfax Action, and set forth what it deems fair and reasonable.”

The petition further requests that the special court enter judgment against the County and issue an order stating the City has the right “.  .  to construct, maintain, operate, and orderly expand its water system in Fairfax County, including but not limited to its present customers and present service area.”

The Water Authority’s filing against Falls Church asks that the case be heard by a jury.  If that request is granted the City likely will request a change of venue.

The Falls Church News-Press has reported that the City Council will vote next Tuesday to draw $750,000 from its water fund to wage a “vigorous fight” to defend the water system.   The City had already allocated an equal amount for legal expenses in the FY 2010 budget, so the cost of pursuing the new litigation and defending the City against FCWA’s suit may total $1.5 million.

Mr Shields told the News-Press that the City had made an offer to Fairfax to settle FCWA’s $21 million claim against Falls Church, but that the terms remain confidential.  The Fairfax County Board unanimously rejected the City’s proposal on Monday night.

In response to a question posed at a budget-related town hall meeting in late March, Mayor Robin Gardner stated that a similar session on the water litigation would be “a good idea.”  Thus far, no such meeting has been held.

All previous City Council deliberations on this issue have been coducted in closed session.  The City’s web posting Thursday afternoon of its counter-claim in the current litigation represents the first time it has made courtroom documents publicly available regarding its legal action against Fairfax County and FCWA.

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The Falls Church Times has featured both reporting and commentary on the ”Water War” between Falls Church and Fairfax County:

Reports

Part 1: A Tale of Two Lawsuits

Part 2: How City Lost Suit Against Fairfax County

Part 3: An Appeal Denied

Part 4: The Authority Strikes Back

Commentary

OPINION: Settle the Water Litigation Now

COMMUNITY COMMENT: Reasons to Resolve Water Dispute