Motions were heard by Loudoun Circuit Court Judge Douglas Fleming on Thursday morning in a case to determine who is on the financial hook for $1 million in improvements to a stormwater pond and dam.
The two parties in the case are the Town of Leesburg and one of its largest homeowner’s associations, Exeter. The HOA represents 829 homes on 215 acres between Rt. 15 and Battlefield Parkway.
Thursday morning marked the first day in court for a process that began more than three years ago, when the HOA received a notice from the Virginia Department of Conservation and Recreation that the dam had been ruled a high hazard. An engineer hired by the HOA in early 2015 estimated the price tag to bring the dam into compliance with state regulations at just under $1 million. A report later put together by town staff also noted annual maintenance costs of $21,000, in addition to $60,000 every six years to prepare state-required studies.
The HOA formally petitioned the town to take ownership of the dam in the summer of 2015, but the Town Council declined. Neither party disputes that the dam is located on HOA property, but differences remain as to who is responsible for repairs or enhancements to the dam. The HOA filed a lawsuit for declaratory judgment against the town in July 2016. The two parties discussed settlement on several occasions but were unable to reach agreement.
Thursday’s court date was an opportunity for Fleming to rule on four motions, three submitted by the town and one by the HOA. But, ultimately, only two motions were heard, as Town Attorney Barbara Notar and Patrick Taves, outside counsel also representing the town, withdrew plea in bar and demurrer motions, saying they would reserve further arguments for the trial.
That left the town with one motion, which asked the court to force the HOA to place all documents mentioned in the pleadings within the court record. In this instance, the motion—called craving over—sought to have Fleming rule that the plaintiff include a more legible format of the plat recording the establishment of the Exeter community by its developer, as well as the letter sent from DCR to Exeter in 2014 when it classified the dam in question as a high-hazard dam. Fleming granted the motion for the more legible version of the plat, but denied the motion to include the DCR letter.
The plaintiff’s lone motion was for a determination of ambiguity. Stephen Moriarty, the attorney representing the HOA along with co-counsel Bruce Easmunt, argued that the court should not go beyond the four corners of the documents at the center of the lawsuit—the plat of the land, and the deed of easement that granted onto the town easements or rights-of-way for current or future stormwater facilities or structures.
Taves argued that the HOA was basing its entire case on the fact that these documents are clear and unambiguous, when in fact the deed makes it clear that the town is not responsible for the dam. He pointed to a 1987 zoning proffer statement signed by the community’s developer that showed that a reserve fund would be set up for the maintenance of a future stormwater dam and pond. Future zoning actions related to the community in the early 1990s—after the deed was executed—maintained that all adopted proffers were still in place, he said.
Taves also pointed out that the dam and pond did not exist when the deed of easement was executed; however, Moriarty argued that the plat did make reference to future stormwater facilities.
Fleming also denied the motion to determine ambiguity, saying he didn’t believe “piecemeal litigation or mini trials are appropriate.”
“I believe those arguments should be taken up during trial,” he said.
A trial date for the case has not yet been set.
Also Thursday, it was noted that a consent order dismissing the state DCR from the HOA’s lawsuit had been entered the previous day.