Arlington, VA

The Arlington County Board voted Thursday night to sue President Trump.

The Board directed the County Attorney to join other localities in legal action over the president’s order to exclude undocumented immigrants from the 2020 Census tally that determines Congressional representation.

Arlington County Board Chair Libby Garvey called the action “clearly illegal and another effort to undermine the Census” prior to the unanimous vote.

More from an Arlington County press release:

Tonight, the Arlington County Board voted 5-0 to authorize the County Attorney to join the County as a party in legal actions filed against the United States President and others challenging the lawfulness of the President’s July 21, 2020 “Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census.”

The President’s Proposal is Unconstitutional

In Section 2 of the Executive Memo, the President specifically calls ‘to exclude from the apportionment base aliens who are not in a lawful immigration status’. The United States Constitution says the census counts everyone living in the United States — every immigrant, every child, every neighbor, every student, everyone. This action by the President attempts to circumvent a recent decision of the United States Supreme Court and is unconstitutional.

“The Constitution requires an accurate count of our population every 10 years. The information from the Census is a crucial record that helps determine the Federal resources we receive over the next decade and is used for planning and research”, stated County Board Chair Libby Garvey. “We must have an accurate count of everyone living in Arlington and refuse to allow this unlawful effort to scare people and suppress the Census count of our immigrant community. Whether documented or undocumented,  our immigrant residents are valued members of our community.  We are determined that they will be accurately counted.”

Other Damaging Actions

The President is also trying to shorten the Census time frame and end the response collection period before Halloween – even when the U.S. Census Bureau has said it needs through December to ensure a complete and accurate count. In short – the administration is trying to undermine the accuracy and integrity of the 2020 Census and create fear of participation among undocumented immigrants.

Arlington County Residents Benefit from Taking the Census

Arlington receives approximately $50 million in funding based on census data to support transportation, housing, emergency services, free and reduced lunch programs, and more. To date, 71% of Arlington residents have responded to the 2020 Census, but we are still working to increase this number before enumerators start reaching out to households who haven’t been counted yet.

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Several senior Arlington County employees left the Saturday, Jan. 25, Arlington County Board meeting with renewed contracts and some notable pay bumps.

The County Manager, County Attorney, County Auditor and Clerk to the County Board all had their contracts unanimously approved in a 5-0 vote with no discussion.

County Manager Mark Schwartz got a 4.5% raise to $282,489 annually. It’s a little less than his neighbor, Alexandria City Manager Mark Jinks, who earns $288,000 annually, according to the Alexandria Gazette Packet. On the other hand, it’s a little more than the $268,000 salary for Bryan Hill, who has the equivalent position in Fairfax County.

This is also the first time Schwartz’s salary has surpassed his predecessor, Barbara Donnellan, whose salary was $270,000 annually by the end of her five-year tenure. Schwartz became County Manager in 2015.

County Attorney Stephen MacIsaac, meanwhile, got a 3.5% raise to $261,933 per year — more than the $243,812 annual salary paid to Alexandria City Attorney Joanna Anderson.

County Auditor Christopher Horton got a 3.25% raise to $147,493 per year. Horton became the county auditor in 2016 and is the County’s second auditor. The first left the job after less than seven months.

Kendra Jacobs, Clerk to the County Board, had the biggest raise at 6.75%, increasing her salary to $115,749. Jacobs was appointed to the role in 2018.

The top county employees also received a raise last year; for all but Horton the raise was higher this year.

Staff photo by Jay Westcott

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(Updated at 3:25 p.m.) Arlington County is planning to start forwarding public records requests about Amazon to the company, despite not yet having finalized the agreement to do, officials say.

Arlington County agreed to alert the tech and retail giant whenever someone files a Freedom of Information Act (FOIA) request for public records involving the company. Both Arlington County and the Commonwealth of Virginia have agreed to the deal, which has been criticized by open government advocates who fear it make public records harder to access.

The deal is part of a $23 million incentive package the County Board unanimously approved last month to lure the company and its promise of at least 25,000 jobs to the county. However, county officials still need to sign on the dotted line to seal the FOIA deal — something Arlington County spokeswoman Jennifer Smith says they will do within the next two weeks.

“Since the agreement has not yet been fully executed, the provision is not yet in effect,” Smith said of the FOIA deal. “Nonetheless, we will likely notify Amazon of requests for records if and when they come in.”

Smith did not answer a question about why the county decided to honor the agreement before executing it.

Arlington’s FOIA agreement says the county will “give Amazon not less than two (2) business days written notice of the request to allow Amazon to take such steps as it deems appropriate with regard to the requested disclosure of records.”

It also stipulates that the county agrees to, “disclose only such records as are subject to mandatory disclosure under VaFOIA or other applicable law or regulation,” referring to the state laws requiring a response within five days to public requests and that the government apply exemptions narrowly.

County Attorney Stephen MacIsaac told ARLnow through a spokeswoman the agreement with Amazon is a “courtesy” and that it “will not change the County’s response to the request” of public records.

“It provides Amazon with awareness of the FOIA request, giving the company the opportunity to protect records it believes are entitled to protection in the event the County intends to release the records,” he said.

This gives Amazon time to file a “reverse open records request” case in court preventing the county from sharing information, according to FOIA expert Professor John Cary Sims of the University of the Pacific McGeorge School of Law.

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Morning Notes

County Officials Defend Amazon FOIA Deal — “The Arlington government’s top attorney says there’s nothing improper about part of the county’s incentive deal with Amazon that gives the company notice of Virginia Freedom of Information Act filings related to the agreement.” [InsideNova]

Pedestrian Struck in Virginia Square — Police, firefighters responded to a pedestrian struck by a vehicle on Wilson Blvd at N. Oakland Street Tuesday morning. The vehicle was turning and struck the pedestrian, who suffered minor injuries, we’re told. In Arlington, pedestrian-involved crashes like this are common, occurring almost every day, though most — like this incident — result in non-life-threatening injuries to the victim. [Twitter]

Smoke Fills Lee Highway Building — Firefighters responded to an under-construction commercial building on the 5800 block of Lee Highway yesterday afternoon to investigate smoke in the building. It was determined that the smoke came from a malfunctioning HVAC unit. [Twitter]

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Arlington officials could soon be headed to court to claw back $200,000 the county handed over as part of a since-canceled agreement to buy a two-acre property in Fairfax County.

The County Board agreed back in 2016 to buy several parcels of land along the 6700 block of Electronic Drive in Springfield, with plans to use the property as space for a new maintenance facility for its Arlington Transit buses.

But the Board decided to back away from the $4.65-million land deal late last year, after discovering that the county would have enough space for bus maintenance at another property officials bought in Nauck last summer. Not only did the Board hope to avoid operating a facility outside Arlington, but members expected the move would save the county as much as $10.5 million initially and roughly $900,000 in maintenance costs each year.

Yet the process could come with its own expenses. The Board voted unanimously last week to authorize county attorneys to pursue legal action against the property’s owner, Shirley Investors, LLC, to recover a $200,000 deposit the county sent to the company before the sale was finalized.

Deputy county attorney MinhChau Corr told ARLnow that she couldn’t discuss the details of the case, but that action by the Board does not mean a lawsuit pitting the county against the property owner is a certainty. But Corr did say it’s a sign that negotiations have become acrimonious enough that the county could pursue such a step in the near future.

“There’s some level of conflict that we anticipate could go to litigation,” Corr said. “But that doesn’t mean we’re 100 percent committed. The two sides could work something out before next month’s Board meeting, this just avoids us having to wait until then to ask for permission to file something.”

County court records don’t show any case involving Shirley Investors and the county as currently pending. Neither of the two men listed as contacts for Shirley Investors in the county’s preliminary sale agreement responded to requests for comment on the matter.

It’s unclear what sort of legal argument the county might mount to recover the deposit.

The terms of the land deal say that the county would’ve been eligible to win back its $200,000 if it called off the sale within 90 days of signing the agreement with Shirley Investors — that deadline is long past, however, as the agreement was signed on Dec. 7, 2016.

Furthermore, the agreement describes that deposit as “the sole and exclusive remedy available to the seller” if the deal fell through.

Photo via Google Maps

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Arlington leaders are doling out raises for County Manager Mark Schwartz and several other senior county employees.

The County Board signed off on modest pay hikes for Schwartz, County Attorney Steve MacIsaac, County Auditor Chris Horton and County Board Clerk Kendra Jacobs at its meeting Tuesday (Jan. 29).

Each one scored 3.25 percent pay bumps on their previous contracts, matching raises the Board handed out last year to the group. All four report directly to county lawmakers.

Schwartz, the top executive in the county government, now stands to pull in just under $262,000 next year. This raise marks the third one he’s earned from the Board since he was hired as permanent county manager in 2016, when he started out with an annual salary of $245,000. His predecessor as manager, Barbara Donnellan, reached a top salary of about $270,000 a year by the end of her five-year tenure.

MacIsaac now pulls in about $253,000 per year, his tenth salary bump since taking over as the county’s top lawyer in 2000. Horton now makes nearly $143,000, earning his second raise since joining the county in 2016.

Jacobs now makes just over $108,000 annually, with the pay bump coming just a few months after the Board hired her to manage meeting materials this past July.

The good news for these county employees, most of whom rank among the highest-paid in the county workforce, comes as Schwartz is warning of some potential bad news for other county workers.

He’s already ordered a hiring “slowdown” to cope with the county’s dire fiscal picture, and has warned layoffs could be in the forecast (alongside tax increases and service cuts) to close a large budget gap in the new fiscal year.

File photo

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Updated with County statement 3/2/2018 at 11:17 a.m.:

Arlington County believes that the dispute with the Berkeley Condo Association over public courtyard access is close to being amicably resolved, and that public access will be restored to the pathway on the property. The County Board authorized the County Attorney to engage in settlement negotiations with the Berkeley Condo Association, to resolve ongoing litigation, and the parties are negotiating a proposal, which, in all likelihood, will be finalized soon. Any final settlement would be between the County Board and the Berkeley Condo Association, not their attorneys or other County officials.

The proposal requires the Berkeley Condo Association to take down the existing gates at the pathway and keep the path clear for public access from 6 a.m. to midnight, or one half-hour before opening and closing of the Ballston Metro station, whichever is later. Under the proposal, the Berkeley Condo Association would be allowed to put up security fencing off the path to prevent trespassing onto the areas adjacent to the residential units.

The Berkeley Condo Association has applied for a Site Plan amendment, and the County Board could advertise a public hearing on that proposed amendment as early as at its March meeting, if the settlement agreement is finalized in time.

An agreement over contested public courtyard access has been reached between the County Attorney and Ballston’s Berkeley Condo Association, the association’s attorney says.

The compromise would allow the Berkeley Condominiums to fence off pathways and the privately-owned patios. The patios will not be accessible at any point to the public and the pathways will only be available during hours that Metro is operational.

“We’ve come up with a win-win, I think,” said William Lawson, the building’s attorney and a Ballston resident.

According to Lawson, a site plan amendment request will go before the Arlington County Board in April to approve the compromise.

In September the Board unanimously rejected the condo association’s desire to remove a requirement — dating back to when the condominium complex was built — that it allow the public to access a courtyard on the property.

Residents cited criminal mischief, from fighting to public drunkenness to drug use, for keeping its property off-limits. A staff report, however, noted that only one police report was found regarding activity at the outdoor space.

The condo building, at 1000 N. Randolph Street, is across from A-Town Bar & Grill and IHOP and down the block from First Down Sports Bar & Grill.

File photos.

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Construction on an apartment building at the corner of Fern and 12th in Pentagon City

In Arlington, when a developer wants to redevelop a property to replace it with a bigger, taller building, the county often receives funding for affordable housing, transportation, streetscape improvements and public art. These “community benefits” from the developer are usually worth millions of dollars.

None of it goes directly to Arlington’s public schools, facing a capacity crisis with no end in sight.

The reason, according to officials, is Arlington’s development approval process, which was codified more than 50 years ago. Builders apply for site plans, and, by state law, community benefits from site plans can only legally be used “to mitigate immediate impacts,” according to County Attorney Stephen MacIsaac.

While a public art contribution is considered an immediate impact for a large apartment complex, for instance, a contribution to schools is not.

What the county is allowed to negotiate are “amenities that are contained within the project, like streetscape improvements, public art, the appearance of the building in general,” MacIsaac told ARLnow.com. “That system does not allow for charges for schools or public safety or running the libraries.”

In neighboring, suburban jurisdictions, developers negotiate benefits like these through the proffer system. In Loudoun County, which has opened 12 new schools in the last five years, the government pegs school costs as high as $37,791 per single family unit, and $11,294 per multifamily unit. Through proffer negotiations, Loudoun asks developers to pay for 100 percent of the estimated capital intensity factors, which includes roads and public safety, according to Loudoun Assistant Director of Planning and Zoning John Merrithew.

The number is typically lower after developers contribute state-mandated affordable housing funds, Merrithew says, but he gave the example of a recent, 70-townhouse development where the builder paid the county $1.3 million, 60 percent of which went directly to school funding. The system works, Merrithew said, because much of the development comes from previously undeveloped land.

“We don’t use the world redevelopment here,” Merrithew said, “because we have very little of it. Most of it is greenfield development.”

Sometimes, developers contribute chunks of land for a new school site. More frequently in the last decade, Merrithew said, Loudoun has bought land from private landowners to build schools. Acquiring land for public uses, including schools, is one of the recommendations the county’s Long Range Planning Committee made last week in evaluating the “Public Land for Public Good” initiative.

The county argues the site plan and special exception system in place has been a major driving force behind Arlington’s transformation over the past half-century, from sleepy suburb to dense urban hub.

“Not only has this zoning structure and this development process worked well in creating today’s Arlington, it’s also resulted in one of the best school systems in America,” Arlington County Board Chair Jay Fisette said. “If we would have to undo our current structure to be able to replicate what’s done in Loudoun, I think that would be ill-advised. There’s no easy fix for the school growth, but we will address it with the School Board, and we always have.”

There could be some room for debate, however, that the current policy prohibits all funding for schools and other public works. As an example, the proposed 29-story, 393-unit apartment building at the corner of Wilson Blvd and N. Randolph Street in Ballston is expected to draw a large sum of community benefit money. Fisette and MacIsaac believe none of that money can legally be spent on schools, but MacIsaac didn’t draw a hard line.

“That’s a tough legal question,” he said. “The kinds of impacts that are typically recognized in the courts in Virginia and throughout the country are much much more immediate impacts, like on the surrounding streets and neighborhood. It does not typically involved secondary and tertiary impacts like government services.”

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KMG Hauling waste truck(Updated at 11:15 a.m.) Arlington County is being accused of “cronyism” and “underhanded tactics” in its attempt to award a contract for garbage, recycling and yard waste collection.

Bates Trucking — which was contracted for all of the county’s curbside recycling pickup and half of its trash pickup until the contract expired yesterday — is in the process of suing the county to prevent it from awarding all of its waste pickup to American Disposal. KMG Hauling, which also sued the county last month, handled the other half of the county’s trash collection.

The county has delayed its recently-approved year-round yard waste pickup program in light of the lawsuit. It canceled its one-year contract with American Disposal, but awarded the company an emergency services contract, for garbage and recycling pickup only, which took effect today.

Bates claims that its proposed contract was the best value and would have saved taxpayers money.

According to a Bates Trucking press release, the county’s now-canceled collection contract with American Disposal would have cost $15 million more over a period of 9 years than that offered by Bates, thanks in large part to Bates offering $9.45 million worth of free recycling processing.

Despite the unsubstantiated claim of “cronyism” in the press release, Bates said its lawsuit has merit and it hopes to continue serving Arlington residents.

“Our protest is not sour grapes or frivolous,” Bates Trucking President Bruce Bates said in the release. “Both incumbent companies are long time vendors for the residents of Arlington County. We have some real concerns over the practices that are being used to ‘usher in’ American Disposal Services, who has higher prices and less experience. Both Bates and KMG are local firms that have provided outstanding service to the residents of Arlington County. Bates wants to understand why we are being bullied and pushed out of the back door.”

The county has declined comment on Bates’ release or lawsuit. It did, however, release the terms of its emergency contract with American, which will reduce Arlington residents’ yearly solid waste disposal costs from $307.04 to $271.04 per year, until a full contract has been re-bid and approved. The Arlington County Board will vote at its meeting this month to reduce the solid waste allocation for FY 2015 by more than $1.1 million as a result.

According to Bates Chief Business Development Officer Willie Wainer, Bates has requested an injunction against the emergency contract, saying the county never put it out to bid as required by law.

“The county had the option, which was the most logical, to keep us in place since we knew the routes and knew the customers until they put a new bid or [request for proposals] on the street,” Wainer told ARLnow.com, “but they decided not to do so and gave American an emergency contract.”

Bates has been conducting trash and recycling pickup in Arlington for 17 years, Wainer said. It expects to put in another bid when Arlington re-issues the request for year-round collection. One anonymous ARLnow.com reader, in the comment section of the initial story on the lawsuit, says he was pleased with the former waste collection service.

“I can say without hesitation that the present garbage removal contractor does a fantastic job and I have to give them 100% marks in any assessment,” said “Bob,” who claims to be a Donaldson Run resident. “The county needs to issue a clarification as to why they have decided to change the garbage removal contractor and what cost competitive procurement process has been followed in selecting the new one.”

Wainer expects the injunction request to be heard in Arlington Circuit Court, where Bates and KMG filed their initial suits, within two weeks.

Photo via KMG Hauling

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Morning Notes

Heat Advisory Today — The heat and high humidity is not relenting after a scorching Memorial Day. The National Weather Service has issued a heat advisory for the D.C region from noon to 8:00 p.m. today. Temperatures are expected to reach the low-to-mid 90s, while the heat index soars to as high as 105. [Weather Channel]

Palin Does Rolling Thunder — Sarah Palin invited herself to attended the annual Rolling Thunder motorcycle gathering at the Pentagon over the weekend, causing a media feeding frenzy and a few hard feelings. Some organizers and attendees grumbled that the one-time Republican vice presidential candidate’s appearance created a political distraction from Rolling Thunder’s mission to raise awareness of American prisoners of war and missing service members. Palin was accompanied by husband Todd and daughters Bristol and Piper. [CBS News, Washington Post]

Missing D.C. Man Found Safe — Matthew Hill, a youth minister at George Washington University who went missing last Tuesday, has been found safe near his family’s home in North Carolina. D.C. police told a newspaper that he had traveled there — without contacting family or friends — for “personal reasons.” An extensive volunteer-led search and social media outreach campaign was launched by Hill’s friends following his disappearance. (His last known location was an Arlington gas station.) The concern for Hill’s well-being even extended into the sports world. Boston Red Sox pitcher Daniel Bard, a close friend of Hill, was said to be continuously checking his cell phone for updates in the team’s clubhouse. [Charlotte Observer, Boston Globe]

County Lawyer Gets NYT Wedding Write-Up — Congratulations to Arlington County Attorney’s Office lawyer Brian Charville and congressional staffer Bridget Fallon. Not only did the couple get married on Saturday, but their wedding received a coveted New York Times write-up. [New York Times]

Local Opera Company to Shut Down — After 50 years in existence, the Arlington-based Aurora Opera Theatre will be ceasing operations on July 1 due to financial difficulties. Aurora is currently the oldest operating opera company in Virgina. [Sun Gazette]

Flickr pool photo by Philliefan99

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