740 S.E.2d 548
Va.2013Background
- Iskalo CBR, LLC filed a special-exception application to build a WMATA bus facility on Fairfax County land split between R-1 (5.32 acres) and I-6 (12.05 acres).
- Planning Commission approved as substantially in accord with the comprehensive plan; Board of Supervisors was expected to approve after recommendation.
- Newberry Station HOA, nearby, urged rejection due to anticipated traffic impacts.
- At a Feb 2011 hearing, Board members disclosed campaign contributions from Iskalo's attorneys; Hudgins and McKay disclosed WMATA ties; counsel for WMATA had roles significant to the project.
- In March 2011, the Board voted 6–3 to approve; chairman abstained; the voting members who disclosed interests voted in favor.
- Newberry Station and others sued for declaratory judgment and injunction, arguing recusal was required under Code § 15.2-852(A) and that approval was not fairly debatable; Circuit court granted Board summary judgment on the fair-debatable issue and sustained demurrer on recusal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recusal under Code § 15.2-852(A) required? | Newberry Station contends Hudgins and McKay had a disqualifying conflict (business/financial interest). | Board argues no disqualifying 'business or financial interest' as WMATA is not a private corporation; recusal not required. | Board properly sustained; Hudgins and McKay had no recusal obligation |
| Whether WMATA is a corporation under the statute for recusal purposes? | WMATA contract-purchaser status with potential financial interest triggers §15.2-852(A). | WMATA is a government agency, not a private 'corporation' under the statute. | WMATA is not a 'corporation' for §15.2-852(A); no recusal required |
| Fairly debatable standard applied to the application’s approval? | The Board failed to apply applicable FCZO standards, rendering approval not fairly debatable. | Sufficient evidence exists to support reasonableness; open-space, noise, and hazardous substances standards were adequately considered. | Record shows sufficient reasonableness; approval is fairly debatable |
| Open-space requirement satisfied under FCZO standards? | Board failed to confirm 10% open space on I-6 portion; staff ignored standard. | Area calculations show more than 10% open space on I-6 portion; standard met. | Open-space standard satisfied |
| Noise and hazardous/substance considerations sufficient in record? | Noise study relied on by Board is inapplicable to Newberry Station; fails to show compliance with noise limits and hazardous substances data. | Noise limits and hazmat requirements are either inapplicable or adequately addressed; not required to be exacting at this stage. | Evidence supports reasonableness; Board’s approach fair-debatable |
Key Cases Cited
- Alger v. Commonwealth, 267 Va. 255 (2004) (plain-language statutory interpretation; words control when unambiguous)
- Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695 (2012) (plain meaning governs; no extrinsic evidence if language is clear)
- Brown v. Lukhard, 229 Va. 316 (1985) (statutory ambiguity requires broader canons of construction)
- Kiser v. A.W. Chesterton Co., 285 Va. 12 (2013) (illustrates approach to interpreting statutory text)
- Cuccinelli v. Rector & Visitors of Univ. of Va., 283 Va. 420 (2012) (nosceitur a sociis canon; distinguish agency vs private corporation for 'corporation')
- Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 (2004) (agency-in-corporate-form hailed as government entity; private-corporation distinction matters)