The Fairfax County Board of Supervisors voted 6 to 3 yesterday to appeal a judge's decision overturning tough development restrictions, saying short-term concerns about the slumping economy were outweighed by long-term needs to plan for transportation and office building growth.
Supervisor Martha V. Pennino (D-Centreville) argued that the board should keep fighting for its so-called downzoning ordinance. "It seems to me that, for the lack of a paper clip, we lost the case" in court on technicalities, she said.
A majority of supervisors agreed, voting to appeal Fairfax Circuit Court Judge William G. Plummer's Oct. 10 ruling invalidating the ordinance to the Virginia Supreme Court.
If the Supreme Court decides to hear the case, arguments probably would be scheduled about a year from now, attorneys said yesterday. In the meantime, the downzoning -- which when approved by the board in December 1989 reduced by as much as half the amount of commercial development allowed on more than 14,000 acres across the county -- is void.
"I ran on a promise and a platform that I would try to straighten out the zoning ordinance, and I'm going to continue trying to do that," said Supervisor Lilla Richards (D-Dranesville), who voted to appeal. "I would rather spend millions defending our ability to manage growth than billions to correct unmanaged growth."
The board's decision drew strong dissent from three supervisors, and from business leaders and developers who said further legal wrangling was a waste of taxpayers' money. The county has spent about $1.2 million on outside attorneys in the case, according to County Executive J. Hamilton Lambert.
"At a time when the county is in an economic slump, we appear to be battling our own businesses," said Elaine N. McConnell (R-Springfield), who voted against an appeal. "There are thousands of houses that people can't sell, and now we're perpetuating that by adding millions to our legal fees . . . . If the Democrats stay in much longer, we're not going to have any money left to run the county."
"We're disappointed because there really was an opportunity here to stop the bleeding and get back to taking a more constructive view on how to deal with the land-use planning concerns that the county has," said C. Thomas Hicks III, president of the Northern Virginia chapter of the National Association of Industrial and Office Parks.
In addition to Pennino and Richards, Board Chairman Audrey Moore (D) and Democratic Supervisors Gerald Hyland (Mount Vernon), Sharon Bulova (Annandale) and Kate Hanley (Providence) voted to appeal Plummer's ruling. Supervisors Thomas M. Davis III (R-Mason) and Joseph Alexander (D-Lee) joined McConnell in opposition.
Plummer's ruling struck down the board's development crackdown on procedural grounds. In making his ruling, the judge found among other things that the initial public notice of the proposed downzoning did not, as required, state a valid public purpose for the action. He also ruled that the proceedings during which the law was passed "were impermissibly vague and confusing."
In short, according to Alexander, "It's not what we did, but how we did it."
Yesterday's 6 to 3 vote came 10 months after the board unanimously approved the downzoning, indicating how much circumstances have changed since then.
Since passing the ordinance, the board has been under fire from the business community. A quarter of the downzoning was overturned by the state General Assembly in the Route 28 Special Tax District.
With office vacancies up and home sales down, and with the county projecting budget deficits of up to $20 million this year and more than $100 million next year, some supervisors now question the fiscal wisdom and political popularity of cracking down on development.
The key argument that apparently swung the decision in favor of an appeal was that Plummer's decision was an attack on local land-use planning that could not be allowed to stand unchallenged.
Deciding whether to appeal "was made more complicated by the intervening occurrences in the last session of the General Assembly and by the economy," said Hanley, a key swing vote. But, she said, the appeal was necessary "to protect the right of local governments to plan and zone, to make local decisions locally."
Roger W. Snyder, chief executive officer of the Northern Virginia Building Industry Association, disputed that, saying the board's decisions to downzone and now to appeal were driven by politics.
"If they do it with the right finesse, they can push the appeal just past the '91 elections and tell the voters they tried to manage growth, but it's tied up in court," Snyder said. "But they're going to lose, and end up spending money that should go to teacher salaries and fire and safety at a time when there's not enough money to go around."
In an unrelated matter, the board yesterday ordered county staff to delay asking a private firm to do an environmental study of a proposed expansion of the Lorton landfill because of citizen concern that the company would not do an adequate job.
Also yesterday, the board authorized Alexander to open negotiations with Lambert about renewing the executive's employment contract.
Alexander said the negotiations are necessary to guard against the possibility that Lambert, who makes $129,348 a year and could decide to retire Nov. 18 at age 50 with a $72,000 annual pension, could lose accumulated leave.