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Loudoun Denies Herndon Appeal

County's Board of Zoning Appeals denies town appeal, possible legal action could be sought.

Loudoun County's Board of Zoning Appeals upheld a ruling made by the zoning administrator in September that a regulated day-labor hiring center is not permitted at the former Herndon Police Station under the county's current zoning.

"This appeal is not about whether or not this is a good location for the day-labor site," said Melinda Artman, Loudoun County zoning administrator. "Rather, it is about a narrow issue."

The issue is whether vehicles using the Herndon side of the site could access it from the Loudoun portion of the site off of Rock Hill Road, said Artman.

In light of an appeal made by the Town of Herndon at the start of October that Artman's ruling was incorrect, Artman reviewed her findings for the seven-member board.

"I determine my decision to be correct and I request that it be upheld," said Artman at the hearing last Thursday.

THE FORMER POLICE station is located in Herndon and Loudoun County, with the jurisdictional line running through the middle of the building.

Next to the police station property is also the town's Department of Public Works building, town shop and a recycling center. The recycling center and driveway to access the former police station and the public works building is in Loudoun County.

The entrance to the recently opened Herndon Official Worker's Center, or the regulated day-laborer center, is also from the Loudoun County side.

In September Artman found a number of zoning violations at the site after Kirby Bowers, Loudoun County administrator, requested she review its uses. Additional violations include a lack of permits for the use of the town's recycling center, which lies wholly in Loudoun County, and a lack of permits for the town to use the existing building, which is in an R-1, residential zoned neighborhood.

On Sept. 19, Steven Mitchell, Herndon Town Council member, wrote a memorandum to Town of Herndon employees and Artman in response to her findings. After reviewing research done by Richard Kaufman, Herndon's town attorney, and additional land use documents in both counties, Mitchell discovered a court approved boundary line adjustment in 1955. That boundary line adjustment moved the Fairfax-Loudoun County line to bisect the former police station building. But, the town's boundary lines, established in 1870, were not changed, he stated.

But, because the town has not protested the boundary line until recently, board members said the town should have no say now.

"YOU CERTAINLY cannot be arguing that the town has a right in a totally brand new use that was only created on that property a couple of weeks ago," said board member E. Page Moffett to William Broaddus, attorney representing the town.

"It is one thing to say you have vested rights for a use that's been there for 50 years," he said, "but I don't see how you could possibly say that you have a vested use for something that was just created."

Because the day labor center is on the Herndon side of the site, the use of the driveway should be a vested, or an existing right, because of the other uses for that location, said Broaddus.

"What is in question is the use of the driveway," he said. "The town has a vested right in the driveway to serve the entire parcel."

After hearing from 17 residents, eight from Herndon, eight from Loudoun County and one from Fairfax County, board members deliberated briefly on a decision. The board voted 7 to 0 to deny the town's appeal of Artman's ruling.

"I find that there is no vesting rights in the Town of Herndon with respect to this property and the day care center," said Moffett, before correcting himself to say "day labor site."

With the denial of the town's appeal, if Loudoun County wanted, it could pursue legal action to close the driveway at Rock Hill Road. Regardless, the town plans to clarify the town's boundary lines in court in 2006. Loudoun County's Board of Supervisors was scheduled to discuss the decision at a Dec. 20 meeting, held after The Connection's deadline.