I’ll address “governmental purposes” part first. If my interpretation is correct, the County Attorney is asserting that Silver Lake Park is exempt from the application of the the zoning ordinance and thus the proffers if a proposed use is for “governmental purposes”.  If one defines “governmental purposes” as those with a public benefit, the use for Tough Mudder would seem incompatible as per the terms of the contract, it was an event exclusively sponsored, organized and operated for the financial benefit of a private, for-profit, out of state corporate entity.  It is also worth noting that this purported “governmental purpose” actually closed Silver Lake Park to public use for more than a week and required numerous financial and operational concessions by the County.  Thus as the event was not a “county” event, I find it inconceivable that anyone could reasonably define it as serving a “governmental purposes”.

Turning to the deed restrictions, I refer to the following:

Which of course begs the question, what exactly are those obligations. They are delineated below, I would note that even more restrictive use conditions were recorded for the parcel leased to Rainbow Riding, a parcel also used for the Tough Mudder event.

So, where does that leave us as the deed provides that the parcel may be used for recreational purposes and the County Attorney notes that “An obstacle race is a recreational event”.  Well, we have to turn to a 2009 BOCS resolution (adopted unanimously) that established Silver Lake Park as a “resource based park”, a park commonly defined as one that provides for the preservation and management of natural resources”, a definition that is supported by the current Comprehensive Plan text regarding “Linear and Resource Based Parks”.

So assuming that the text and definition are not clear enough evidence, where does one turn? I would suggest the unchallenged Zoning Administrator’s Proffer Interpretation of September 10, 2009 holding that the “The term “nature based” is clearly intended to be synonymous with “resource-based” which is a park type outlined in the Prince William County Comprehensive Plan under Linear and Resource-Based Parks”.  Similarly, the Zoning Administrator held that “Passive recreation opportunities and facilities are listed as appropriate for Linear and Resource-Based Parks” and noted the Comprehensive Plan definition of “passive recreation” as:

“Passive Recreation: Uses that generally require or result in little or no alteration of the landscape and produce little or no light, noise or visual intrusion on their surroundings. Passive uses may require trails, small footprint buildings for restrooms or visitor centers, parking, etc. Examples may include hiking, jogging, birding, photography, nature study, fishing, canoeing or kayaking (depending on the access needs), biking, or horseback riding. ”

The Zoning Administration concluded that a “change in the desired use of the subject property would require reconsideration and formal decision resulting in another resolution by the Prince William County Board of Supervisors during one of their scheduled public meetings. Such process would allow public feedback from interested parties, similar to the proffer amendment process”.

I do not recall any such public meeting, public feedback, reconsideration or formal resolution by the BOCS that changed the allowable uses.

With respect to the parcel leased to Rainbow Riding, the restrictions are more specific:

Now before anyone starts squawking about the “other parks and recreational purposes” clause, I make note of Clause 1 of the license agreement between Rainbow Riding and Prince William County.  Funny, I don’t recall any Zoning Administrator’s determination or BOCS review of Tough Mudder’s use of the Rainbow Riding parcel for uses that are clearly not related to therapeutic riding programs, equestrian or appropriate related or supporting uses.

So where does all of this leave the public, well here is where I begin to set the stage for the shiver inducing potential of the County Attorney’s memo.

I would (offer) that the memo relies exclusively on custom and three Attorney General opinions (the most recent of which is now 37 years old) as the Virginia Supreme Court has never ruled on the issue of proffers and/or the local zoning ordinance not applying to a locality’s use of its own property for governmental purposes.  Note that the County Attorney makes specific reference to proffers as “voluntary conditions” that “are not in the nature of a contract, but are exercises of the power of land use control delegated to the County by the state”.

Therein lies the rub.  Although the County Attorney may well be correct with respect to the interpretation of the impact of “proffers”, that analysis ignores that the relevant proffer language was expressly stated in the deed of conveyance from Toll Brothers to Prince William County.  I would further note that in the nearly 13 years that have passed since the execution of the deed, Prince William County has uniformly, consistently and in good faith enforced those restrictions.

A plain reading of the instrument suggests that the restrictions carry a certain meaning by definite and necessary implication, means that the Tough Mudder use is prohibited absent formal action by the BOCS.

Having research(ed) the matter, I would suggest that it is clear that the current judicial trend and legislative inclination is to recognize and uphold the validity of such restrictions (presuming they are consistent, clear and unambiguous) and the courts appear inclined to give effect to the plain intention of the parties, in imposing deed restrictions, and question those seeking ingenious subtleties of interpretation by which to evade such restrictions.

In the instant case, I would suggest that the restrictions and subsequent enabling resolutions were clear, unambiguous and reasonable in scope, creating a specific purpose for the parcels, one that would maintain property values in the area and provide for the enjoyment and utilization of the property in accordance therewith.  One can not argue that the language is not clear in its intent and that there was not significant public notice.  Similarly, one must understand that such restrictions often are not drafted merely to benefit the grantor, but also each owner of the subject property as well as neighboring properties.

It is thus noteworthy that the County Attorney has failed to cite any authority by which the County might violate the express terms of the deed.  Remember, the currently valid Zoning Administrator’s interpretation requires reconsideration and formal decision resulting in another resolution by the BOCS at a scheduled public meeting.  Rather, it appears that the County Attorney’s Office has actively engaged in seeking ingenious subtleties of interpretation by which to evade the restrictions.

These tactics would suggest that the community’s efforts that resulted in the proffers (a consideration given to the residents of the county in exchange for higher densities given to Toll Bros.) were meaningless and suggest that the County had no intent to implement, enforce or comply with the proffers.  If that is the position of the County Attorney and its advice given to the BOCS, is it any wonder that few if any residents and businesses trust the County Government or have faith in their promises.

THE SHIVER INDUCING PORTION OF THIS POST

Referring back to the Attorney General’s opinions referenced in the County Attorney’s memo, what might all of this portend for County residents? I will suggest a sampling of the worst case scenarios simply to make a point.

Upon review of the 1971 Attorney General’s opinion, a plain reading indicates that “the disposition of garbage and rubbish constitutes a governmental function” and thus the County could utilize any of its properties to establish a sanitary landfill regardless the current zoning of the property.  Thus, if PWC can dismiss the effect of the Silver Lake proffers and deed restrictions to allow for Tough Mudder’s use of the passive recreation park, could it not also determine that an appropriate use for that County owned parcel would be as a sanitary landfill.  If that is indeed the case then would not the same apply to Long Park, Rollins Ford Park, Hellwig Park, Dove’s Landing, etc.

To carry that a step further, does that mean that any County owned property regardless of zoning or deed restrictions could be used for any purpose that the County deems to fulfill a governmental function?  Could an underutilized neighborhood elementary school be converted into a drug rehabilitation facility or detention center?  Could county owned open space be transformed into a sewage treatment plant?  Could Fire Station 17 be converted into a Hazardous Waste and Recycling Center?  The list is virtually endless and given the language of the memo calls into question whether the express needs fulfilled by the County’s acquisition of property are those that will accomplished by the actual use of the property.

I would suggest that the memo constitutes the first step down a really slippery slope.  To date, the County residents have largely trusted that the County will comport with its stated intentions regarding County properties.  The County Attorney’s memo asserts that the County can elect to make whatever use of a public property it deems necessary, without consideration of zoning, deed restrictions or the requirement of public input.  Given the seemingly increasing distrust of County Staff and our elected officials, the memo would seem to set a dangerous precedent that must be challenged.

I would suggest that the County Attorney’s Office has smugly determined that due to the high cost of the litigation required to challenge its position, such a challenge is most unlikely and in the event it were filed, the plaintiff unlikely to prevail.  I would simply note that Amazon and Dominion Power were of a similar impression yet they are currently burying a power line along Route 66 as a result of a challenge led by Prince William County residents and Community organizations.

Of course that 4+ year challenge was by no means inexpensive and required the expenditure of tens of thousands of both dollars and man hours.  I would suggest that County’s position with respect to the usage of public property as established in the June 25 memo will likely require a similar, lengthy and expensive challenge.

I don’t often point to other websites or suggest what residents do with their hard earned dollars but in this case I am compelled to ask those that might be willing to part with a few of their hard earned dollars visit the Coalition To Protect Prince William County’s website and help fund their efforts on this matter.