|The lot on Woodlark Drive.|
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.”