Lansdowne Day-Care Providers Sue Homeowners Association

Plaintiffs Seek to Prevent Lansdowne Referendum

By Delphine Schrank (Contact)

Wednesday, August 22, 2007

Five day-care providers in Lansdowne on the Potomac have filed suit against the homeowners association, seeking to block a community-wide referendum on a proposal to impose restrictions on their businesses.

The Lansdowne HOA board issued a statement to residents informing them of the latest development in the long-running dispute.

“While the Board understands that the daycare providers and customers believe they are acting in their own best interests, we are disappointed that the apparent intent of the lawsuit is to stop the community from having a chance to decide for itself whether or not daycares can operate in Lansdowne,” the statement read. “It is also particularly unfortunate this has happened, considering the Covenants Committee and the Board of Directors have worked with these individuals to attempt to reach a compromise for several months now.”

The board has until Thursday to file a response to the lawsuit. A hearing is scheduled for Friday in Loudoun County Circuit Court.

The proposed amendment to the community’s governing covenants would restrict home-based day-care businesses to a maximum of five children, four fewer than the county-prescribed maximum. Residents have been given the option of sending ballots by Wednesday next week or voting at a special meeting that evening.

Rory Clark, a Leesburg-based attorney for the plaintiffs in the lawsuit filed Monday, said the issue is the HOA’s contradictory position on the section of the covenants that deals with home businesses.

“Even though they say that the existing covenant is absolutely unambiguous and prohibits all home businesses, they are proposing this amendment as a clarification,” Clark said. “Well . . . how can you clarify it into existence if it’s merely clarifying something in the covenant?”

Clark disputed the HOA board’s assertion that it has made an effort to resolve the issue amicably. “Not once have I gotten a phone call in the two months since I’ve been working with my clients,” the attorney said.

The suit also alleges that the voting procedures for the referendum are not authorized by the covenants. Clark said the proposed amendment is a “material” change to the covenants and hence requires approval by a two-thirds majority, not a simple majority. He said the system of allowing residents to vote either before or at the Wednesday meeting also is improper.

Clark said his clients will file a second motion tomorrow, arguing that the existing covenants are ambiguous.

The suit filed Monday cites a June 8 Virginia Supreme Court ruling, which held that when a subdivision’s covenants are ambiguous, the rules should be enforced in favor of the free use of property.

HOA board members declined to comment on specific allegations in the lawsuit, citing the ongoing nature of the litigation.

The board’s online statement to residents said, “The Association will vigorously oppose this lawsuit and make every effort to ensure that the community is able to decide for itself whether daycares can operate in Lansdowne through the democratic process. . . . Since this lawsuit has been forced upon us, we will work to stop these individuals from taking away the community’s voting rights on this issue, as we feel that opposing this lawsuit is in the best interests of the community.”

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