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Thursday, May 23, 2019

Developer files suit after Board of Supervisors rejects house in flood plain

The lot on Woodlark Drive.
A developer who has failed to get approval for a new house on a vacant lot in a floodplain in Annandale has sued the Fairfax County Board of Supervisors, the Chesapeake Bay Preservation Ordinance Exception Review Committee (ERC), and the individual members of the ERC.

K2NC LLC, a limited liability company formed by the owner of the property at 4104 Woodlark Drive, Sheila Konecke, filed suit in Fairfax Circuit Court earlier this month seeking damages of $1.2 million. 


Eighty percent of the Woodlark property is within a Resource Protection Area (RPA) and is subject to flooding, and another large area is off limits to development due to a covenant agreed to by the board of the Fairfax Hills subdivision that requires a 75-foot setback.

As a result, K2NC sought a waiver from the ERC that would allow a single-family house to be built in part of the RPA. After several revisions of the application and several ERC meetings, the ERC denied the request in December.

K2NC then appealed the ERC decision to the Board of Supervisors. The BoS heard the case in April and, in a precedent-setting decision, rejected K2NC’s application.

The BoS agreed with the ERC’s determination that the proposed single-family house would encroach too much into the RPA, would increase runoff, and would have a negative impact on water quality.

To meet a provision in the zoning ordinance that requires the building to elevated a certain distance from the flood plain boundary, the developer planned to bring in 250 truckloads of fill dirt.

In the suit, K2NC notes that the county’s Land Development Services staff had approved its plans before the ERC denied it.

The suit charges that K2NC “met all the criteria and requirements” of the ERC and that the rejection by the ERC and the BoS is “unreasonable, arbitrary, and capricious.” The suit claims the rejection is an “unlawful regulatory taking without just compensation” and thus is unconstitutional.

“I’m comfortable with the technical and administrative analyses done by our committee and the numerous opportunities we gave the applicant over the year we met with them,” said ERC member Chris Koerner, who is named in the suit. “Both the ERC and the Board of Supervisors voted to unanimously deny the application. Now we will see if the court agrees with us.”

4 comments:

  1. This is a ridiculous example of our litigious society. The lot is not suitable for building a house. Drive by and take a look for yourself.

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  2. A how dare we not get our way lawsuit.

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  3. Mark Doehnert5/24/19, 10:36 PM

    It is interesting too that on Google maps for that address the photo view shows a Weichert Realty for sale sign that says "Buildable Lots."And the Fairfax County assessments search for the same address shows in the data "Site Description BUILDABLE-AVERAGE LOT." And finally the Map view at the Fairfax County assessments will show the stream if one chooses, but the map doesn't seem to show resource protection areas. So it doesn't appear we have well-integrated pictures of our county's lands in county information sources. Would make it harder for prospective buyers too.

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    1. This property was for sale 9 times from 2003 to 2015 when this applicant bought the property. It was disclosed 4 of the 9 times that it was an RPA. Virginia is a buyer beware state and it is the responsibility of the buyer to know what the conditions are, including covenants and RPA's prior to purchase. Banking on no HOA to enforce the covenants falls into the buyer beware category and banking on no enforcement of the covenants has proven a bad investment decision. I wonder why no other builder chose to purchase this lot during the height of the real estate market in an otherwise prime location?

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