A Fairfax County supervisor is trying to block development in the area around the Fair Oaks Shopping Mall until a lawsuit challenging the county's right to limit growth near the Occoquan Reservoir is settled.
Supervisor James Scott has filed a request with the Fairfax Planning Commission, arguing that if the county's slow-growth rezoning plans in the Occoquan watershed area are illegal, as landowners and developers are claiming in a lawsuit, then the county's prodevelopment plans in the area where Rte. 50 and I-66 cross west of Fairfax City also should be invalid.
"I think they're wrong," said Scott of the landowners' suit, "but because they're challenging the comprehensive plan, we should not rezone to the high density at the Rte. 50-I-66 area on the basis of that plan. Because if the court finds that they're right," those rezonings would be invalid.
In separate actions last summer, the Board of Supervisors voted to allow massive development around the intersection and to change the density limit in the Occoquan area from one house an acre to one house per five acres. The moves were designed to allow development at Rte. 50 and I-66 and to stem pollution in the Occoquan Reservoir, a source of drinking water for much of Northern Virginia.
Supervisor Audrey Moore, (D-Annandale) tried repeatedly to get the board to link the Occoquan zoning restrictions to the Rte. 50-I-66 development, arguing that the area should not be developed until the courts had determined the legality of the Occoquan decision.
Scott and other board members refused, saying such a move would be illegal under Virginia law.
But after Scott, a Democrat who represents the Providence District and who voted for both proposals, saw the lawsuits he was angry. "They want it both ways," he said. "When I saw those pleadings, I really hit the ceiling." He said landowners and developers have argued in court that the Occoquan zoning restriction is illegal because the county comprehensive plan is illegal, while supporting the Rte. 50-I-66 development that the plan also allows.
Marc E. Bettius, a lawyer for landowners and developers opposing the Occoquan down zoning, argued in court papers that the county's comprehensive land-use plan is illegal because the county's annual review process is inadequate under state law.
"I don't understand Mr. Scott," Bettius said in an interview. "If he feels that there is no credence to our argument, then he should ignore it. If he feels there is credence, then he should go out" and rework the comprehensive plan.
Bettius also urged in court papers that the water quality argument justifying the Occoquan restrictions be rejected. He said the Rte. 50-I-66 area approved for development also includes land in the Occoquan watershed. "If there is a regional water quality problem," Bettius said, "then what was done in 50-66 makes no sense."
In a victory for the Occoquan landowners, Circuit Court Judge Johanna L. Fitzpatrick recently rejected county attempts to have the landowners' suits dismissed.
The first rezoning case in the I-66 area under the massive development plan is expected to come before the supervisors on Monday. The Artery Organization filed for approval to build 173 town houses about three years ago. Under Virginia law, the board must act on zoning applications within a year of filing, unless both sides agree to a delay.
Artery agreed to previous postponements, but would lose the land if a decision were postponed past February, said Bettius, the firm's attorney.
Meanwhile, Fairfax County attorney David T. Stitt, in a memorandum to be presented to the board Monday, raised another potential problem for the board's Rte. 50-I-66 development plans, which require developers to pay $2.50 a square foot for off-site road improvements.
Stitt wrote that although the board can accept voluntary contributions toward such road improvements, there is "no enabling authority" for the board to require contributions.
Scott's proposal to the Fairfax Planning Commission to block Rte. 50-I-66 area development will be considered as part of the commission's annual review process in which anyone can suggest land use policy changes. The staff then reviews the nominations and suggests those that the commission should consider. Any commission changes must then be approved by the supervisors.