WATER WAR: City’s Countersuit Dismissed

Falls Church’s countersuit against Fairfax has been dismissed.

In a ruling delivered last Friday in Fairfax Circuit Court, Judge R. Terrence Ney sustained demurers submitted by Fairfax’s counsel, dismissing with prejudice both the City’s counterclaim against the Fairfax County Water Authority (FCWA) and its third party complaint against Fairfax County and the Fairfax County Board of Supervisors.

In the brief supporting the demurer, Fairfax’s counsel wrote “The City fails to identify any pending project [emphases original] where the Board of Supervisors is considering a water proffer.  The absence of any concrete case in which to evaluate the City’s claims prevents the issuance of declaratory relief.”

Judge Ney agreed, stating  that Falls Church had not made a specific challenge to a wrongful act in the case, only to the general statutory scheme by which the County and FCWA operate.  He observed that under such circumstances the City was seeking ”an advisory opinion” and that it is well established that Virginia courts do not hand down such rulings.

FCWA sued Falls Church last December.  The City counter sued in May and was allowed to include the County and the Board in its action.

Fairfax Water’s suit against Falls Church is scheduled for trial on September 14.  Dismissal of the City’s counterclaim in Circuit Court will not affect the status of the special court which will convene in Hampton in October.