WATER WAR: Fairfax Contests City’s Motion to Stay Case

Last week saw heavy filing in the ongoing litigation between Falls Church and Fairfax as the County’s counsel submitted three motions, the most significant in response to the City’s request for a stay.

On July 13, a special court was established in Hampton to hear the case of the City of Falls Church versus Fairfax County, et. al.  Shortly thereafter, the City asked for a stay of the action currently in progress in Fairfax Circuit Court, arguing that the special court “has broad powers to control the disposition of the matters presented in the Petition, including the adjudication of the matters raised in the action before this [Circuit] Court.”

Last Wednesday, August 5, Fairfax’s counsel filed a counter-motion, arguing that the special court does not have the power to grant the damages or injunctive relief sought by the Fairfax County Water Authority (FCWA), an issue central to its claim against the City.  The counsel further argued that, contrary to the City’s motion, a stay of the case in Circuit Court would retard, rather than promote, judicial economy.

On Friday, August 7, Fairfax filed a motion requesting that the Court should “bifurcate (i.e., split the issues of) liability and damages.”  The argument asserts that if Falls Church prevails in Circuit Court at the liability phase, the trial would be much shorter as the damages question would be moot.  Alternatively, if FCWA prevails and is awarded injunctive relief (i.e., allowed to connect water lines to a proposed project), the Authority’s claim for damages would be significantly limited.

The County filed a second motion on Friday, arguing the Court should bar the City’s argument that competition in water service is bad public policy.  The motion notes that during its 2007 action against FCWA “the City acknowledged that Virginia law permitted ‘competition’ . . .  but argued (unsuccessfully) that federal law preempted it.”

The case before the Circuit Court is scheduled to go to trial on September 14.  The Special Court is not scheduled to convene until October 2.

SEE ALSO: Chief Justice Authorizes Special Court [July 17]