Circuit Judge Declines to Block Lansdowne Move to Place Limits

By Delphine Schrank (Contact)

Saturday, August 25, 2007

A Loudoun County Circuit Court judge denied a request Friday for an injunction to block a community-wide referendum on a proposal to restrict the operations of home day-care providers in Lansdowne on the Potomac.

A group of day-care providers had asked for the injunction as part of a lawsuit against the Lansdowne on the Potomac Homeowners Association.

Rory Clark, a Leesburg attorney for five of the providers, said the judge ruled that there was no need for an injunction because the plaintiffs’ arguments against the proposed restrictions would become moot if residents voted down the proposal.

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

The lawsuit still stands, Clark said, and the day-care providers intend to pursue it if residents vote in favor of the amendment.

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

On Friday, the day-care providers filed another motion, arguing that the subdivision’s covenants are ambiguous. They cited 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. The HOA has several weeks to file a reply.

“The court ruled in favor of the association today. The vote will go on as scheduled,” HOA President Jeff Brown said in a brief e-mail.

Reached late Friday evening, Brown said he did not want to comment further without consulting the HOA board’s attorney, Wilbert Washington.

Clark said that after Friday’s court hearing, he and Washington discussed whether they could reach common ground.

“Communication is always a new step forward,” Clark said.

“I’m sure they’re pleased they don’t have to stop the vote,” he said. “If it passes, we’ll be right back in court.”

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