The lawsuit between the Town of Leesburg and its out-of-town residents over water and sewer rates took a step forward April 18, when Judge Thomas D. Horne ruled against the town's motion to dismiss the case.
"His ruling certainly keeps the case on track," Brian Shiflett, a River Creek resident since 1997, said. "It is saying that our charges have merit."
Last October, seven plaintiffs filed suit against the Town of Leesburg, saying Leesburg is breaking its 1986 agreement with the county by charging out-of-town residents a 100 percent water and sewer surcharge. All of the plaintiffs live outside of the Town of Leesburg in communities, such as Potomac Station, Spring Lakes and River Creek that are served by the town's water and sewer facilities.
In December 2005, the Leesburg Town Council voted to increase the out-of-town fees 36 percent, bringing the rate to almost $6 per 1,000 gallons of water. In-town residents pay a rate of $2.67. Shiflett said the in-town residents have not seen a rate increase since 1992, while the out-of-town residents saw their rates rise to a 50 percent surcharge in 2000.
ACCORDING TO A brief filed on behalf of the Town of Leesburg, the town believed the case should have been dismissed because "the water and sewer fees were increased in order to generate the revenue necessary for a utility fund bond."
Barbara Beach, the Leesburg Town Attorney, said any complaints about the resolution should have been filed within 30 days of the bond's approval, or March 20, 2006, and the statute of limitations for the lawsuit had passed.
"The statute says what it says and we think it is appropriate in this case," Beach said.
Michael Quinan, the residents' attorney, said the statute of limitations did not apply to the lawsuit filed by the out-of-town residents.
"The statute applies to operation and issuance of bonds," Quinan said. "By its terms it does not apply here."
FOLLOWING HORNE’S ruling, Beach said the town is seeking an interlocutory appeal of the decision from the Virginia Supreme Court. An interlocutory appeal is one that happens while a case is ongoing, Quinan said.
Both Quinan and Beach said Horne has indicated he will stay the case for 60 days, in order to give time for the town’s appeal.
"It will give us an opportunity to see what the Supreme Court thinks," Beach said.
If the Virginia Supreme Court does overturn the case, Shiflett said Horne would not be able to move forward as the case's sitting judge, another reason for the potential stay.
"The chances of it being overturned are slim," Shiflett said. "He cited all the arguments in our suit in his decision. It seems his decision was very firm. Hopefully that would mean there is very little chance for the decision to be overturned."
ONCE THE CASE moves forward, the court will hear another motion from Beach, a demurrer, which contests the legality of the lawsuit, stating that even if the facts alleged were true, there is no legal basis for the lawsuit. There is no date set for the demurrer hearing.
"If the judge denies the demurrer then we would move forward to trial and discovery," Quinan said. "We don’t have a trial date yet either."
With the stay and the upcoming demurrer, there is no indication when the trial would begin, possibly pushing opening arguments past the scheduled water and sewer rate increase in July.
"Meanwhile we continue to get charged," Shiflett said. "This thing is going to keep on going. The fact that the town is looking for little loopholes here and there shows you the strength of our case. The town's attorney, that’s her job. But every time she files a motion, it costs us money."