Thomas D. Horne, Chief Judge
E. William Chapman, Esquire
Michael A. Banzhaf, Esquire
Steven T. Webster, Esquire
44084 Riverside Parkway, Suite 300
Leesburg, Virginia 20176 Randall T. Greehan, Esquire
Jeffrey A. Huber, Esquire
T. David Stoner, Esquire
Robin Weiss Harman, Esquire
6862 Elm Street, Suite 400
McLean, Virginia 22101 John R. Roberts, Esquire
County Attorney, County of Loudoun
One Harrison Street, S.E., Fifth Floor
Leesburg, Virginia 20177-7000 Dear Counsel:
The Court has previously published a letter opinion addressing the Demurrer and Plea in Bar filed by the defendants. Complainant's counsel have asked that the Court reconsider its opinion. They have informed the Court that the subdivision application for the subject tract has been withdrawn. Accordingly, the underlying reason upon which the Court relied on in sustaining the plea no longer exists.
Defendants have requested that the Court review the other ground relied upon in their plea. The Court has not previously ruled upon the matter, other than to require that the complainants file a bill of particulars.
As noted in the Court's earlier letter opinion, complainant seeks judicial invalidation of Chapter Eight of the Revised General Plan. Conversely, the Board counters by suggesting this is but a Sisyphean effort. It is suggested that even were the Court to invalidate the offending provisions of the Revised General Plan, such invalidation would have no effect on the availability of central utilities on the property. A further planning decision under the 1997 Plan Amendments would be required should the provisions of Chapter Eight be declared invalid. Thus, the argument of the Board continues, the Complainant would stand to neither gain nor lose from pursing this action. Accordingly, the Board concludes that the instant action lacks the necessary antagonistic assertion of right sufficient to support Complainant's standing to pursue this action under section 8.01-184 of the Code of Virginia.
In its Bill of Particulars, the Complainant asserts that the result to be obtained is not so limited in scope as the Board would suggest. It suggests that should the Court find the phasing provision of the Revised Plan invalid, then similar provisions of the 1997 Plan would likewise fall. Were the court to so rule, Broad Run contends that the property would then be subject to the 1993 Dulles South Area Management Plan. That plan would have envisioned the extension of central water and sewer to areas where Complainant's property is located.
Complainant also asserts that should Chapter Eight be invalidated, the provisions of the features shown on the Dulles South Area Management Plan indicates central utility service in the area of the property. Moreover, it suggests that the unique relationship existing between the availability of public facilities and the comprehensive plan as a device for land use control give the offending provisions legal efficacy as applied to its property. Va. Code Ann. § 15.2-2232 (1997 & Supp. 2001).
The Court is of the opinion that the Bill of Complainant, as supplemented by the Bill of Particulars, states sufficient facts to entitle Broad Run to judicial review of the provisions of Chapter Eight. It seeks more than a mere advisory opinion.
Accordingly, the Court will overrule the Plea in Bar.
The Court having previously resolved the matter of the Demurrer, the case will go forward on the docket of the Court. Mr. Webster may draw an order consistent with the opinion to which counsel for the Board may note their exception.
Very truly yours,
Thomas D. Horne, Chief Judge