Alexandria was handed a solid defeat by visiting Judge Frank A. Hoss in Alexandria Circuit Court late Wednesday afternoon. Hoss ruled the city had used the wrong rationale in revoking the special use permit and changing the zoning text in their efforts to force the closure of the Mirant Potomac River Generating Station.
"The judge ruled against us on both the revocation and the text change, reasoning that we used the wrong legal vehicles," said attorney John Britton who argued the city's case before Hoss. "We will have to have some serious discussions before we make a decision as to whether to appeal the decision or not."
Dave Thompson, corporate public relations for Mirant said, "Mirant is pleased with the decision of the court. We believe it validates our position that the Potomac River plant has always operated within the city's legal designations for the property. We will endeavor to continue to work closely with the city in the future."
THE LAWSUIT WAS based on City Council's decision last year to revoke Mirant’s special use permit for its adminstrative offices. The permit was granted in 1989 along with a zoning amendment to change the status of the administrative area from non-compliance to non-conforming. The revocation would have forced Mirant to reapply to the city for a new permit or vacate within a given time frame.
"The purpose of the recommendation by the Planning Commission and upheld by City Council was to have Mirant come to the city to apply for a new SUP or leave in seven years. Mirant refused to do that," said Britton.
"We have maintained that the operation of the plant is not consistent with the surrounding residential area due to emissions and serious violations of the National Ambient Air Quality Standards," Britton said.
Britton said it was the city’s contention that every municipality has a general nuisance ordinance and the plant impacts its neighbors adversely.
“It is the overwhelming evidence of adverse health effects that led the mayor and council to make their decision to uphold the recommendation of the Planning Commission," he said.
MIRANT ARGUED before visiting Hoss that "the city violated due process by acting unilaterally to rezone the Mirant facility in question," according to Thompson.
"The city took this action not based on any violation of the SUP but on the supposed violation of state and federal law dealing with emissions," said attorney Paul Kiernan of Holland and Knight who represents Mirant.
"The city even agreed that there had been no violation of the SUP as such. They can not arbitrarily change the zoning status. That is what our position of lacking due process is based upon," Kiernan said.
IN ITS DEFENSE the city called a variety of witnesses, in addition to various members of city staff directly involved with the ongoing air quality questions being raised by the operation of the 50-year-old, coal-fired facility. Several witnesses were residents living near the plant at the north end of Old Town and others who have played technical roles in the continuing controversy.
Ann Kaupp, a resident of Marina Towers located immediately adjacent to the generating station, explained how she and other residents have been negatively impacted by the plant's operation. She has lived in Marina Towers since 1971.
"I also talked about how the League of Women Voters and Old Town Civic Association have been keeping the city informed on air quality issues raised by the Mirant operation. We also produced a paper on air pollution in 2003," Kaupp said.
Kenyon Larsen, former chairman of the Alexandria Environmental Policy Commissoin and a resident said he told the court he thought the city acted correctly.
“They went through the proper procedures. The Commission passed a resolution while I was chair to close Mirant. I testified on that resolution," Larsen said.
"Mirant seemed to be arguing that nothing has changed since the SUP was issued and they were asking why take this action now. But, the city's position was that things had changed.”
IN THE COURSE of its presentation to the court, the city called on two people who have acted as professional consultants to both the city and resident groups attempting to show cause why the Potomac River plant should cease operation.
Maureen Barrett, an engineer with Boston-area Aero Engineering Services and Dave Sullivan of Sullivan Environmental Consulting, Inc. in Alexandria both testified.
"What I presented was the analysis of the ambient air quality study I had done for the city and how that compared to national standards. The result showed that the Mirant plant exceeded the standards for all pollutants," Barrett said.
"Using receptors and meteorological factors in August 2005 we produced a refined modeling analysis that took a broader look at the impacts. The results showed exceedances of the standards at this facility, is what I testified.”
Sullivan testified about the report his company prepared showing there seemed to be a problem with emissions.
“The court also wanted to know the time sequence of our studies. It was presented to council between March and June of 2004. However, when I presented the report I did so on the information available at that time," Sullivan said.
IN REPRESENTING Mirant before the Planning Commission in 2004, attorney Harry P. Hart had told the commissioners at that time that the SUP had nothing to do with the operation of the plant.
“It has to do with the new office space that replaced a series of trailers in 1989. We are not furthering any legitimate cause affecting the city by revoking these SUP's," Hart said.
In arguing the city's case before the Planning Commission, city attorney Ignacio Pessoa presented a detailed memorandum that maintained both permits were approved subject to compliance with all applicable codes and ordinances and that SUP's are revocable for failure to comply with any law." He applied that to state and federal laws applicable to air quality.
"All uses operating in the utility zone are subject to use limitations," Pessoa said. "No use shall be conducted in any manner which would render it noxious or offensive by reason of dust, refuse matter, odor, smoke, gas, fumes, noise, vibration or glare."
When the Planning Commission voted unanimously to recommend revocation of the SUP's, Hart said the revocation would raise serious problems for the commission and the council, resulting in the present lawsuit.