Loudoun County Circuit Court Judge James Chamblin denied a request Friday, Aug. 23, for an injunction that would halt a vote on a proposal to change the covenants of the Homeowners Association of the Lansdowne on the Potomac.
The injunction, which was filed on behalf of day-care providers in the Lansdowne community, is only one part of the legal actions being taken over the decision to restrict at-home businesses in Lansdowne, Rory Clark, attorney for the day-care providers said.
In June, the Lansdowne HOA gave home-business owners 13 months to comply with the community’s covenants or face closure. The current covenant states no businesses can be run out of a residence, only home offices.
An amended version of the covenants is up for a vote during a special meeting to be held Wednesday, Aug. 29. Under the amendment, day-care providers would be allowed to serve five children. The county allows day-care providers to serve up to nine children at one time.
"My clients aren’t opposed to the new proposal, although they think allowing nine children would be more appropriate than five, " Clark said, "but this election’s being done by total improper means.
IN COURT, Chamblin refused to give an opinion on the day-care providers case against the HOA, saying he would rather wait for the outcome of the Aug. 29 vote, Clark said.
"The vote is going to be what the vote is going to be," Clark said. "We only need the judge to act if we lose."
Clark said that if the amended covenants do not pass, he could drop the lawsuit over the election because there would be no need to Chamblin to invalidate the vote.
The main concern over the scheduled vote, Clark said, is that the amendment is a material change to the covenant, therefore requiring a two-thirds approval. The amendment would need only a simple majority to pass Aug. 29, since the HOA has deemed it a nonmaterial change to the covenants.
FRIDAY MORNING before entering court, Clark filed a second motion stating that Lansdowne’s covenants are ambiguous. In the motion Clark cited a June 8 Virginia Supreme Court ruling in Scott v. Walker, where the court ruled that in a case where a community’s covenants are ambiguous, they should be viewed in favor of free use of land.
"I think [the ruling] is one of the reasons there has been a flurry of activity to change the covenants," Clark said.
Clark said the crux of the issue is defining what is considered a true residential use.
"There is a distinction between a community service provided in a home, like newspaper delivery, babysitting or day-care providing and having a Hooters or a Jiffy Lube in someone’s house," he said. "That’s what the covenant is trying to prevent. Someone having a Jiffy Lube running out of there garage."
Clark said there is also a discrepancy between what the county designates as a residential use and what the Lansdowne HOA says. The home day-care providers are designated as day-care home under the Loudoun County Zoning Ordinance, which is a different zoning than a day-care center.
"You can only have day-care home in a residential area under the zoning ordinance," Clark said. "What my clients do in Lansdowne is residential. That’s not my opinion, that’s the law."
WHATEVER HAPPENS WITH the Aug. 29 vote, Clark said his clients are ready to move forward.
"It’s fair voting that is the issue," he said. "In no way are we trying to stop the people in Lansdowne from having their say on this issue. If they would stop this vote, we would form a committee and help them start a legal election."
— Erika Jacobson