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As we reported a few weeks ago, Alwington Farm Developers, LLC has filed a six-count lawsuit against the county for its...reluctance to approve the new 122-home development just outside the Town of Warrenton.

In some regards, the lawsuit follows the well-worn path of many another contention against the county – that almost everything Fauquier does in terms of land-use planning is illegal, charges which, by and large, the county has successfully defended before.

In this case, the litigant alleges that the Fauquier County Zoning Ordinance is illegal, as is the county's Sliding Scale Ordinance.

Then there is the tried and true chestnut that so often appears in documents filed by those who sue the county, that exclusionary zoning is part of the problem.

We'd be more impressed with that argument if what is being proposed for Alwington Farm weren't what it certainly will be -- an upscale development of relatively expensive homes.. The Alwington land is unquestionably too valuable to do otherwise, at least at this density.

Alwington Farm Developers, LLC is in no way going to build housing on that property to serve “persons having low or moderate incomes,” which it claims the county is excluding.

This is not to say that we don't think the county has problems with exclusivity – it does. But they aren't solved by building more expensive, large-lot, single-family homes that low- and moderate-income people can't afford.

Still, if the suit is throwing in a couple of kitchen sinks, there are some elements which have some concerned.
For one, the allegation that the open-space requirement for this development constitutes a taking.

That will be interesting to watch in light of county and state voters' overwhelming approval of Question 1 earlier this month. The Question 1 results ratified an amendment to the state constitution putting additional limits on government's eminent domain power, and, in light of the voters' substantial endorsement of that concept, the courts are liable to look a little closer at any allegation of this sort.

The common open space requirement, “encumbers the land in such an easement from further subdivisions in perpetuity....” In other words, the county has "taken" the land; whether it has actually done so, and whether doing so in this fashion is illegal, remains to be seen.

This ought to concern the most die-hard property rights advocates as it will those who view real property as something more of a public trust.

The second contention in the suit that has some concerned is that the board of supervisors has exceeded powers granted under the Dillon Rule. In this instance, the suit alleges that preliminary plat approval is the domain of the planning commission, not the board.

Our ordinance requires that any preliminary plats approved by the planning commission – and the planning commission approved the developers fifth preliminary plat for the property just about a year ago, on Dec. 12, 2011, by a unanimous vote – must go to the board.

According to the suit, the planning commission should have the last word, that preliminary plat approvals are ministerial, and that requiring a board of supervisors vote “is not contemplated anywhere in the Code of Virginia.”

“No where [sic] in the statutory scheme of Virginia does the Legislature grant the power to the county to make provisions for a Board of Supervisors' authority to overrule its Planning Commission (or designated agent) in the performance of the Planning Commission's ministerial function of Preliminary Plat approval,” the suit contends.

Stay tuned. It's going to get interesting, not only for Alwington Farm, but for Fauquier County as a whole.

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