Herndon — The Herndon Town Council unanimously passed a response to the Dec. 6, 2011 Fairfax County Board of Supervisors’ decision to regulate water sales and rates from non-county providers.

The council has been examining the issue since the December decision, and found several problems that put their legislative authority at risk in the ordinance. Town attorney Richard Kaufman said there were two problems, overlapping of powers and delegation of municipal powers, that concern the town from a legal standpoint.

"Setting of water rates constitutes a major legislative power enjoyed by local government in Virginia," he said. "In this case, with the county ordinance, you have a situation where there is an attempt to have a delegation of the town council legislative power to set rates to the county’s Department of Public Works. This constituted an unlawful delegation of authority."

THE ORDINANCE states that Fairfax County will be the only provider of water in the unincorporated locations unless the water authority determines that it cannot physically provide service, no water rate in the unincorporated county can exceed the county’s rate, unless the excessive rate is approved by the Fairfax County Department of Public Works and the Board of Supervisors. Any modified rates must be re-examined every year.

Kaufman said the town has only 41 water customers outside of town limits, calling it "almost an afterthought." Thirty-eight are in the Stuart Pointe development, which is adjacent to the town’s eastern border. The other three are Herndon High School, Temple Baptist Church and a nearby single family home. The ordinance does not apply in the Town of Herndon, but to those customers.

"In a case where the town and county both have equal powers and the county’s powers are not dedicated to a county-wide purpose and the town has already exercised its powers, in that case the law states that the town’s exercise of its powers pre-empt the county in or with respect to the town," he said. "The ordinance would be inconsistent with this law, which is important to towns."

The town purchases water wholesale from the Fairfax County Water Authority.

The cities of Falls Church and Fairfax, as well as the Town of Vienna, have already filed civil actions against the Board of Supervisors and the county. The cases are pending, in the early stages of litigation, and Kaufman estimated it would be at least a year until a conclusion is reached.

Herndon is instead focused on a different strategy, which was recommended by Kaufman, and would be a local, legislative response.

"This response would be relatively simple and inexpensive and would be relatively non-litigious and non-threatening to the county," he said. "It would say that the Town of Herndon is not in a legal position to follow the ordinance and state that the mayor and Town Council are interested in talking to Fairfax County in an attempt to resolve the legal or legislative differences, and that it would be interested in pursuing solutions with the county."

Herndon Mayor Steve DeBendittis said the decision was based on setting a precedent maintaining the town’s authority.

"The revenue is not the point, the point is maintaining the town’s rights, our legislative authority," he said. "We need to do that, not only now, passing this is a good first step, but in whatever goes on in the future and not just cede our authority to the county."

OTHER COUNCILMEMBERS did not want to go as far as to file suit against the county.

"Support moving forward with this. The county is trying to solve a bigger problem for itself. It’s something we can work out, the county is not our enemy, we can sit down and talk," said Vice Mayor Lisa Merkel. "It also asserts in a formal and strong way our position and spells out what our actual problems are with the ordinance."

Councilmember Sheila Olem agreed, saying "this is the most cost effective way to do this, we don’t need to rush to a lawsuit like some of the other communities."

Other residents also supported the action taken and were not in favor of bringing suit against the county.

"Doing nothing isn’t an option, we have to assert our rights as a town," said Dave Webster of Herndon. "Litigation would be very expensive and I don’t think would accomplish the goal we’re trying to accomplish."