Loudoun County residents neighboring the Town of Herndon's western border may soon learn that, instead of being neighbors to the town of almost 23,000, they are town residents.
In a Sept. 19 memorandum to Steve Owen, town manager, Councilman Steven Mitchell stated the town's border lies within Fairfax and Loudoun Counties — and has since 1954.
"I always assumed that the corporate limits of the Town of Herndon ran down the middle of Rock Hill Road, to and across Route 606," Mitchell stated in the memorandum.
After reviewing research done by Kaufman and finding additional land use documents in both counties, Mitchell discovered a court approved boundary line adjustment in 1955 that moved the county line to bisect the former police station.
The town's boundary lines — established in 1879 — were not changed.
"Prior to the boundary adjustment, of which the town was not a participant in the discussions or findings," wrote Mitchell, "the entire corporate boundaries of the town ... lay entirely within the boundaries of Fairfax County. There appears to be approximately 300 yards to the west of the corporate limits of the town that were originally a part of Fairfax County."
Mitchell finished Kaufman's almost 10-year investigation into the town's boundary lines in response to a Sept. 6 memorandum from Melinda Artman, Loudoun County zoning administrator.
Artman's memorandum stated that the town could not operate a recently approved day-labor hiring site at the former police station because the use would violate Loudoun County zoning laws.
For the site to be legally operated, Herndon officials would have to apply for special exception zoning permits, something Loudoun County's Board of Supervisors said they would not do, said Artman.
Artman's determination also stated there were no permits on file with Loudoun County for the operation of the recycling center or the former police station building that reside in Loudoun County. There were also no permits for the Department of Public Works personnel to use the driveway entrance and exit along Rock Hill Road — which lies within Loudoun County.
"THE CONCLUSION IS that the Loudoun County Zoning Administrator erred," said Councilman Dennis Husch in a newsletter to constituents. "The old police station property is totally within the Town of Herndon and there by not subject to Loudoun County’s zoning regulations or the blocking of the entrance by Loudoun County."
The discovery also means the town could gain new residents from the approximately 45 single family homes that are on and west of Rock Hill Road just north of Route 606, said Husch.
Before the boundary line adjustment between the counties in 1955, property owners in the affected area received a letter from the Fairfax County Department of Assessments notifying them that the property would be turned over to Loudoun County, according to Mitchell's memorandum.
"Again, at no time that I am aware of, was the town ever notified or a party to this boundary line adjustment between Fairfax and Loudoun Counties," the memorandum states. "The corporate limits of the town remain today as they existed in 1879 and have been reaffirmed throughout several codification's of the Herndon Town Code and its charter."
Because of this, a formal determination was made by Kaufman that the town does reside within two counties — not an uncommon occurrence within the Commonwealth.
Kaufman determined the "ordinances of the town prevail over any county ordinances — Fairfax and Loudoun."
DURING ITS SEPT. 27 public hearing, council members voted 4 to 1, with Ann Null opposing, to appeal Artman's zoning determination.
In light of Mitchell's memorandum, the council was scheduled to discuss the town's next steps during its Oct. 4 work session, said Mayor Michael O'Reilly.
Before the memorandum was made public, Loudoun County zoning officials were sent a copy of the findings to review, he said. Kaufman was scheduled to release an official legal opinion by the end of this week.
"Richard's been working on this for the last 10 years or so," said O'Reilly. "He knew there was an issue there."
It is unclear how Loudoun officials will handle the recent findings, he said.
County officials could hear the town's appeal before the board of zoning appeals and make a determination at that level; they could by-pass that hearing to move directly to circuit court for a determination; or they could note the town's appeal and then defer the item for further discussion between town and Loudoun County officials, said O'Reilly.
Regardless, the town will eventually go to court so a judge can make an official determination.
IT IS UNCERTAIN if the single family homes and commercial buildings in question will be incorporated into Herndon, or if a trade off agreement would be made, said O'Reilly.
If incorporated, property owners would receive free trash removal, Herndon Police assistance, Department of Public Works services including street cleaning and snow removal and discounts to the Herndon Community Center and Herndon Centennial Golf Course, among other amenities. Residents would also pay the town's real estate tax in addition to Loudoun County taxes.
Once more information is known and a plan is devised, town and Loudoun officials will jointly notify the affected property owners, said O'Reilly.
"We, I think, are doing everything we can to lay all the cards on the table," said O'Reilly. "We're trying to resolve issues, not create issues."