The Countryside community's homeowners association has sued the Loudoun County Board of Supervisors, Loudoun County and the developers of a subdivision known as the Eden tract seeking to reverse the board's November recommendation for zoning that allows the development to go forward.
The lawsuit is apparently among the first to be filed by a Loudoun community association seeking to stop the development of a community next door, according to a Sterling lawyer familiar with community association law.
The board voted 5 to 4 on Nov. 3 to approve the two types of zoning--planned development housing and town house/multifamily residential--needed to build the subdivision, which is being constructed by Eden Associates, a subsidiary of Milestone Communities of Reston. Len Forkas, president of Milestone Communities, said he questioned Countryside's reasoning in filing the lawsuit.
"I'm just mystified by it," Forkas said. "We have the zoning; the planning staff approved it, thought it was good idea; the planning commission approved it; the Board of Supervisors approved it. We started talking to those folks [in Countryside] two years ago, trying to make it better for them."
Eden Associates plans to build 314 units on almost 48 acres north of Route 7 near Algonkian Parkway. The project includes 290 town houses or apartments and 24 single-family homes. Nineteen apartments and three single-family houses will be made available under the county's affordable housing program--the apartments for rent and the houses for sale.
The lawsuit, filed Dec. 3 in Loudoun County Circuit Court, states that the board's action was "unwarranted, arbitrary and capricious, and contrary to the conditions and requirements of the plans and ordinances of Loudoun County."
The suit also states that homeowners in Countryside, which was incorporated in 1980 and now has about 5,600 residents, are "aggrieved" by the board's action and that because of the action, "there exists an actual controversy and an actual antagonistic assertion and denial of right with regard to the proper application" of county laws.
Members of the board of directors of the Countryside Proprietary and the Leesburg lawyer for the association did not return telephone calls seeking comment on the suit.
Bob Gordon, attorney for the developer, said, "It's regrettable that they've sued, but the courthouse is open."
Ray Ceresa, a Sterling attorney who represents about 30 homeowners associations, said he has not come across a suit such as the one filed by Countryside, in which an association wants to block development on adjacent land.
"This is definitely not common," Ceresa said. "Any landowner is usually concerned about what's going on next door, but usually the homeowners association is concerned about the common areas. Some people would argue that that's not the function of an association, to fight the construction of a subdivision."
He said that the bylaws of homeowners associations in Virginia follow a standard template that includes a phrase that describes the powers of the board of directors, including the collection of monthly assessments from homeowners and the purchasing of insurance.
"Usually there's catchall that says they can 'do other things not prohibited by law,' " Ceresa said. "They have broad discretion to do what they want to do."
Supervisors who voted for the zoning change in November said at the time that the development would trigger transportation improvements that would benefit all county residents.
In exchange for supervisors' approval, Eden gave the county 15.1 acres of right of way needed to extend Algonkian Parkway south of Route 7 and construct sections of the cloverleaf interchange just west of Countryside that eventually will connect Route 7 with uncompleted Atlantic Boulevard.
Supervisors Chairman-elect Scott K. York (R-Sterling), who voted against the zoning change for the Eden tract, said the board's discussion on the zoning hinged on whether the interchange was necessary. He declined to comment further on the board's action.
York said he is not familiar with any other lawsuit in which a homeowners association seeks to block development on nearby property. "It is unusual in this case," York said.