By STEPHEN SIEGEL
Falls Church Times Staff
May 30, 2012
Ever since a new legal opinion from the US Army Corps of Engineers rocked Falls Church City last week, forcing the suspension of the plans to sell the City water system to the highest bidder, many people, including City officials, wanted to see the opinion.
City officials still hadn’t seen it by Wednesday, but now the Times has a copy. Signed by Earl Stockdale, chief counsel of the Corps, it cites a number of reasons for concluding that a 1947 law authorizing the Washington Aqueduct to sell water to Falls Church also precludes the Aqueduct, which is managed by the Corps, from selling it to an investor-owned utility.
Mr. Stockdale’s memo cites a passage in the law, as well as a failed attempt to modify the law, as the basis for his opinion. He also cites a 1963 opinion on the topic from the Corps’ Baltimore office.
The passage he quotes says “the Secretary…is hereby authorized…upon request of the town council of Falls Church, Fairfax County, Virginia, or any other competent State or local authority in the Washington metropolitan area in Virginia, to permit the delivery of water from the District of Columbia water system for the purpose of supplying water for the use of said town; or to any other competent State or local authority…”.
Mr. Stockdale then writes that the language of that passage causes him to believe that “the law provides authority for the Secretary of the Army to deliver water” from the Aqueduct “only to governmental authorities.” He underlined “only” for emphasis.
He then adds that an attempt was made to modify the law in 1953 to specifically permit the sale of water to “public utility corporations”, but notes that the legislation failed, which “further informs and reinforces my opinion regarding the limitations on the delivery of water to non-governmental entities.”
Mr. Stockdale also says that there is precedent for his view in the Corps’ legal department, citing a 1963 opinion from attorneys for the Corps’ Baltimore district, who advised the Fairfax County Water Authority that it was “prohibited from reselling a portion of the water it had purchased from the City of Falls Church to a public service corporation for resale to its customers.”
The remaining outstanding questions are whether any other government agency or attorney could reverse the decision, and why the Corps apparently released the earlier opinion that said the provision of water to an investor-owned utility was acceptable.
It was that legal opinion, from senior counsel Susan Greenwood in March, that City officials relied on as they issued invitations to bid on the City’s system.
Asked why the earlier opinion was released if it wasn’t final, Gene Pawlik, a spokesman for the Corps, said he would inquire.
City officials met in a closed session Tuesday night to discuss the water issue and what the City will do in response. They issued this statement Wednesday, which appears to indicate that they haven’t made any final decisions:
“In light of the recent reversal by the Army Corps of Engineers with respect to the ability of the Washington Aqueduct to sell water to investor owned utilities, the City Council and staff are continuing to evaluate options for the future of City water system, with the goal of providing the best possible long-term solution to its taxpayers and customers. The City remains committed to providing superior service to customers by delivering safe, dependable drinking water at a competitive price.”
Separately, City Councilor Ira Kaylin, emphasizing that he was speaking for himself and not the Council, said in a written statement: “I believe that it is important to place the recent Army Corps decision that prevented the sale of the water system to interested buyers in context. Of course we are very disappointed that the Army Corps reversed an earlier approval on which we based our decision to move forward. However, we were well aware that there was no guarantee that our minimum price would be reached so we have always have had alternatives which we will now carefully explore.”
Mr. Kaylin also told the Times that the City received a letter from one of the companies that had been planning to bid for the system. The letter said the company would have initially bid at the City’s minimum price of $44 million, had the Corps’ decision not intervened.
“The market has spoken; we have a valuable commodity, which Fairfax would like us to give to them for free,” he said.
“As a member of the City Council, I believe it is our fiduciary responsibility to obtain fair market value for one of the City’s largest assets. I will continue to make all and every effort to ensure that we can secure an arrangement that is the best for the City and by extension for our Fairfax customers as well.”
By FALLS CHURCH POLICE DEPARTMENT
May 30, 2012
NOTE: This report is not a definitive list of all criminal activity and is subject to change upon investigation.
Trespassing, 7124 Leesburg Pike (George Mason High School). On May 21 school officials notified police that a man who was later identified entered the school without permission. The investigation is ongoing.
Larceny from Building, 1051 E. Broad St. (Koon’s Ford). On May 23 a set of license plates were reported stolen from a vehicle.
Public Drunkenness, 200 block Douglas Ave. On May 23 a 50 year old Alexandria man was arrested for Public Drunkenness.
Residential Burglary 200 block E. Fairfax St. On May 23 an unknown suspect(s) entered an apartment with an open window and stole a laptop computer sometime between 8 a.m. and 10 a.m.
Residential Burglary, 100 block Birch St. On May 24 an unknown suspect(s) entered an apartment and stole cash and various electronic devices.
Violation of Protective Order, 1000 block E. Broad St. On May 25 an officer conducted a traffic stop for a motor vehicle violation. The driver, a 37 year old Lorton man, was arrested for Violating a Protective Order (2nd Offense).
Public Drunkenness, 6700 block Wilson Blvd. (Eden Center). On May 26 a 30 year old Hyattsville, MD man was arrested for Public Drunkenness.
Narcotics Violation and Obstruction of Justice, 210 E. Fairfax St. (Merrill House). On May 26 a 43 year old City of Falls Church man, was arrested and released on summons for Possession of Marijuana and Obstruction of Justice.
Trespassing and Liquor Law Violations, 200 block Grove Ave. (West End Park). On May 27 a bike officer observed two individuals in the park after dark. An 18 year old Silver Spring, MD woman was arrested for Underage Possession of Alcohol. A 22 year old Alexandria man was arrested for Trespassing and Drinking In Public. Both individuals were released on summons.
Driving Under the Influence, 1300 block S. Washington St. On May 27 an officer responded to the area for a motor vehicle crash. One of the drivers, a 52 year old Bladensburg, MD man, was arrested for Driving Under the Influence.
Public Drunkenness, 6757 Wilson Blvd. (Eden Center). On May 27 a 55 year old Falls Church man was arrested for Public Drunkenness.
Narcotics Violation, 100 block S. Spring St. On May 28 officers received a report of individuals attempting to enter vehicles near N. West St. and Grove Ave. Officers found the individuals matching the given description. One of the occupants, a 26 year old City of Falls Church man, was arrested and released on summons for Possession of Marijuana.
Driving Under the Influence, 800 block W. Broad St. On May 28 an officer conducted a traffic stop for a motor vehicle violation. The driver, a 41 year old Falls Church man, was arrested for Driving Under the Influence.
By GORDON THEISZ
May 30, 2012
• Redevelopment plans that do not conform to the code are being approved without Board of Zoning Appeals (BZA) hearings for variances.
• Citizens do not have adequate opportunity or notice that something is happening in their neighborhood that might require action on their part.
• Citizens are severely hampered in their ability to bring about an appeal of a zoning administrator’s decisions.
• The zoning administrator’s decisions are “presumed correct” by courts, but some decisions do not comply with the plain language of the code and therefore are incorrect.
• The City Manager is not providing effective oversight of the zoning office, allowing the zoning administrator’s power to go unchecked.
• Citizen volunteers on the BZA may have resigned because they did not have confidence that the zoning administrator would follow the code and abide by their decisions.
Word is that the March resignations of John Murphy and Kent Taylor from the Board of Zoning Appeals (BZA) were entered into the public record at the May BZA meeting. Since the City website shows no BZA minutes posted since 2010 and no agenda posted since March 2011, it is apparent that they will not actually be available for the public for several years.
I think we need to know why two dedicated citizens would resign so abruptly from a local board. I requested copies of their letters in April and was denied. The local news media were similarly rebuffed. The City declined citing personnel privacy issues as delineated in the Freedom of Information Act.
Asked directly about their resignations in April, Mr. Murphy told me “my letter speaks for itself” and Mr. Taylor said “sorry, I’m done.”
The issue debated at the time of their resignations was City approval of a porch projecting beyond allowed limits into the front yard at City Manager Wyatt Shields’ new home. The BZA had itself denied a variance for this several months earlier only to have the City approve it in a modified form (that still was not in compliance with the code according to board members).
I understand Murphy and Taylor’s decision to leave the Board. Why serve on a public body, sworn to uphold the laws of the City, when the City staff itself won’t follow them and ignores BZA decisions?
The builder of the home wrote in a comment in the Falls Church Times that plans were modified after the BZA denial and the City approved them. But how could the City approve plans that were not compliant with the zoning code, even if modified, without a second variance hearing before the BZA? Members were told at a subsequent BZA meeting that City approval of modified plans was “usual and common practice.” The City has thus far failed to provide the code reference to support their action.
I did research into past BZA actions as part of my own legal case against the City in 2007. Prior to 2005 the BZA heard multiple variance request hearings nearly every month. Since then the BZA often has no meeting at all. Is there no need for variances anymore? Are all new construction and rebuilding activities actually complying with the letter of the law? Or is the zoning administrator just approving these on his own when he deems them “usual and common practice?”
The builder stated that none of the neighbors appealed the new approval of the porch. But when the City approves something, the neighbors usually are unaware. There is a 30 day window with which to appeal a zoning administrator’s decision. This public decision is not advertised aside from a monthly list of approved permits buried deep on the website. Thus, the first time a neighbor might have the opportunity to notice something wrong is when construction starts.
On an appeal, the courts presume a zoning administrator’s decisions correct. This is an enormous hurdle to overcome as an appellant. Combine that with being unaware in the first place and a 30 day window to appeal, the odds are stacked high against the neighbors.
The Shields zoning problem is just another symptom of the failure of the City Manager to oversee his zoning administrator. Mr. Shields finds his integrity questioned over an approval on his own property because the zoning administrator ultimately reports to Shields, a clear conflict of interest. Even if Shields was blinded from knowing what the builder had planned for their new home, the compliance for zoning on his property should have been perfect and he should have implored the staff to make it that way.
None of this is new. The City has found itself with a pending legal action by neighbors against a decision of the zoning administrator nearly continuously since 2005. The issues are mostly narrow in focus, but always involve the contention that the zoning administrator is not following the plain language of the zoning code. Instead, he is “interpreting” a much wider leeway than the language allows.
The purpose of the city code is to “preserve the residential character of Falls Church City.” The zoning laws set the limits for development. The management of this City, by allowing the power of the zoning administrator to go unsupervised and to push beyond the limits of the zoning code, is abdicating their responsibility to uphold this purpose and thereby negating the property rights of all of its citizens.
Two upstanding citizens no longer serve the City. The City management hopes this latest zoning controversy will once again fade away. While there are many heavy issues the City government is grappling with right now, why can’t it get something basic like property rights correct?
Will our City Council, the only voice the citizens have, take the City Manager to task on zoning issues? Or will it allow City management to ignore proper application of the zoning law for another two years?
Gordon Theisz is a Falls Church City resident who is active in numerous local civic organizations.
May 30, 2012
The June FIRSTfriday of Falls Church event highlights include Call It the Blues, an all media juried art exhibit at Art and Frame of Falls Church celebrating the Tinner Hill Blues Festival and showcasing the works of various area artists. At Stifel and Capra, meet clay artist Linda Vroegindewey and see her fun and whimsical works. In the parking lot at 111 Park Avenue, experience Art-A-Lot with an antique car Cruise-In, a musical performance by Tom Nichols and Holly Montgomery and special guest Helen Hausmann, and several exhibits featuring various painters, jewelers, and other artists. Head over to Quinns Auction Galleries for more music by the Art Daniels Band and an auction preview. Wine tastings, yoga class, dance moves, more music and more fun at FIRSTfriday locations throughout The Little City. For details go to www.firstfridayoffallschurch.com
Sixty-five teams with nearly 600 participants have already raised more than $50,000 in support of the American Cancer Society for the Sixth Annual Relay for Life of Falls Church, which gets under way this Saturday, June 2, at 6 p.m. at the track at George Mason High School.
Cancer survivors will be honored at a reception beginning at 5 p.m. in the Cafetorium at Mary Ellen Henderson Middle School. Luminaria given in memory of persons who have died of cancer or in honor of cancer survivors will be lit as dusk falls at 9:30 p.m. for the moving Luminaria Ceremony. Members of the community are invited to come and participate before the field is cleared for registered teams, who will keep a team member walking, weather permitting, throughout the night.
For more information on how you can support this year’s Relay for Life, go to http://www.fallschurchrelay.org/.
At the 66th Annual Meeting of the National Cartoonists Society (NCS), held at the Green Valley Ranch in Henderson, Nev., Nick Galifianakis won the Reuben Division Award for Advertising Illustration. The contending finalists were Kevin Kallauger and Tom Stiglich.
Born in Durham, NC, and raised in Falls Church, Va, Galifianakis does the cartoon Nick and Zuzu. Since 1997, he has drawn the cartoons for the national syndicated advice column Carolyn Hax, formerly known as Tell Me About It. He illustrated the book Tell Me About It: Lying, Sulking, Getting Fat … and 56 Other Things NOT to Do While Looking for Love, authored by Hax in 2001. He has also illustrated a number of books by writer and novelist Andrew Postman, and published his own book, If You Loved Me, You’d Think This Was Cute: Uncomfortably True Cartoons About You.
Nick’s father Peter Galifianakis is an accomplished sculptor and painter, and Nick is the first cousin of actor Zach Galifianakis, and his uncle is former U.S. Representative Nick Galifianakis.
The National Cartoonists Society is based in Maitland, Fla., near Orlando.
By: Falls Church Times Staff
May 28, 2012
George Mason High School English teacher Karin Tooze was honored at The Washington Post earlier this week as an Agnes Meyer Teacher of the Year. She was joined by other various winners from different school districts across the Washington, D.C. area. Click here for more from Lasso Online.