Contributions to Fairfax County Officials

June 6, 2013

Due to a recent Virginia Supreme Court case, clients and consultants who have filed or who may file zoning applications in Fairfax County should refrain from making contributions to members of the Board of Supervisors, Planning Commission or BZA. Contributions of more than $100 within the prior 12-month period could trigger a recusal by these officials and might imperil the timing and success of land use applications. Property owners, applicants, consultants and their individual agents and members should understand the scope of this case prior to making any political contributions to members of the Fairfax County Board of Supervisors or other impacted officials. Failure to do so could result in recusal of key officials or open up land use cases to legal challenge by opponents.

Newberry Station HOA v. Board of Supervisors of Fairfax County

On April 18, 2013, the Virginia Supreme Court decided the case of Newberry Station HOA v. Board of Supervisors of Fairfax County. The case arose from a rezoning in Fairfax County approving a WMATA bus maintenance facility. The Newberry Station HOA challenged the rezoning based upon conflicts of interest involving four Board of Supervisors members. The HOA alleged that Supervisors Hudgins and McKay should have recused themselves because of their service on the WMATA Board. Further, they alleged that Chairman Bulova and Supervisor Cook should have recused themselves for receiving more than $100 in contributions from the applicant’s consultant. [1]

The court found that Supervisors Hudgins and McKay were not required to recuse themselves on the narrow grounds that WMATA is a public entity and that they did not receive any compensation for their service. The court reached this decision by interpreting Code of Virginia section 15.2-852(A) in a way contrary to the longstanding interpretation by Fairfax County and most members of the development community. The statute contains two paragraphs related to conflicts of interest. The first regulates a “business or financial relationship,” including contributions exceeding $100, between members of the Board of Supervisors, Planning Commission and BZA and those involved with land use cases (land owners, contract purchasers, lessees, agents, attorneys, consultants, etc.) and requires disclosure of the business or financial relationship. The second paragraph regulates “business or financial interests” between members of the Board of Supervisors, Planning Commission and BZA and property owners, contract purchasers and lessees and requires both disclosure and recusal. The court interpreted a “business or financial interest” to be the same as a “business or financial relationship.” Though not directly addressed in the case, that interpretation is being interpreted by Fairfax County to require recusal by officials who received contributions exceeding $100 within the preceding 12-month period. The recusal prohibits a member from voting or participating in any way in a land use case or public hearing. This is a change from Fairfax County’s longstanding interpretation, which required disclosure of contributions only.

Impact on Land Use Cases

The Newberry case will have a significant impact on land use cases currently being processed and on anticipated cases where contributions have been made during the previous 12 months. Board of Supervisors members have already begun recusing themselves from cases where they received more than $100 in contributions. Those involved in the land use process should use caution and discuss any contributions or gifts with an Attorney.

  • Who is impacted
    • Property owners, contract purchasers and lessees of property subject to land use applications are directly impacted by this decision.
    • Attorneys, engineers and other consultants may be impacted, but are not directly addressed by the Newberry case.
    • Anyone who is listed on a Fairfax County land use affidavit. This includes individual members of an LLC or partnership, the parent entity of an LLC, partnership or corporation, and officers and directors of corporate entities.
    • Anyone involved in the land use process should avoid political donations or gifts to avoid potential delays or future challenges. If donations and gifts are made, those making the contributions should fully understand the Newberry case and its potential ramifications on land use cases in which they are involved.
  • What contributions are impacted
    • Any gift or donation having a value of more than $100, singularly or in the aggregate.
    • Gifts and donations include monetary contributions, tickets to sporting or charity events, or any other benefit given to a member of the Board of Supervisors, Planning Commission or BZA.
    • Multiple small gifts are aggregated (i.e., a $50 donation and $60 ticket are a contribution exceeding $100).
  • Best practices moving forward
    • No gifts or donations to members of the Board of Supervisors, Planning Commission or BZA.
    • If you are aware of existing contributions, do not discuss land use cases with the impacted member.

If you know of existing contributions in active land use cases, we recommend contacting one of the attorneys listed below for more information. Additionally, if you are unsure whether you or your company has made contributions, we can assist in reviewing public contribution records and helping you determine whether a conflict exists.

For more information, please contact the attorneys on this page.

1. The Newberry Station HOA later dropped this argument before the decision by the Virginia Supreme Court.
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