Home Business Limits Face Court Challenge

By Mike Pettigano
After months of meetings and debates, the battle over the operation of home-based child-care services in Lansdowne has moved to Loudoun Circuit Court.

The Lansdowne HOA membership voted Aug. 29 against amending covenants to permit home child-care operations for up to five children on a 255 to 217 vote.

Rory Clark, an attorney representing child-care providers in Lansdowne, had filed an initial lawsuit that challenged the legitimacy of the HOA's power to hold a vote to change the covenants.

During Clark's a hearing on that request, Loudoun County Circuit Court Judge James Chamblin said he would not grant such an injunction because he felt the court should not step in until after a vote had taken place. Chamblin said the amendment could be defeated and negate the charges in Clark's first lawsuit, which ultimately occurred.

The Lansdowne HOA board considered the vote to have been the final determination by the community on the issue of whether the covenants should be changed to allow more flexibility to operate home-based businesses in Lansdowne.

However, Clark filed a second suit Aug. 24 against the HOA that asks for a court ruling on whether the covenants are ambiguous. He has claimed that because his clients feel the covenants are ambiguous, only a court judge's decision can give his clients satisfaction. But Clark said if the matter can be resolved before a court hearing, he would withdraw the current lawsuit as well.

"Nothing is urgent right now. We don't want to incur any extraordinary expenses. If we understand they are going to become aggressive, we'd have to respond. We have our case filed and ready to go, if need be. We're still awaiting [the HOA's] response [to the active lawsuit]. Once [we hear their response], we'll decide what needs to be done," Clark said.

The newest suit points out that the child-care providers are fully licensed and are compliant with all state and local laws, including the Loudoun County Zoning Ordinance. The complaint also said the HOA sent letters to the child-care providers stating that home child-care services were permitted.

One letter, addressed to resident Jamie White, dated Aug. 22, 2005, said, "the board decided that in-home offices should be allowed with certain stipulations and guidelines as further outlined in Section 7.24 of the covenants. Your home daycare is allowed as long as you obtain all necessary approvals and licenses for such use as required by Loudoun County."

Then in a letter dated Dec. 13, 2006, the HOA covenants manager informed child-care providers Hussein and Heba El-Sharkawi that they were in violation of the covenants, citing Policy Resolution No. 8 - Home Business: Daycare Center.

According to Heba El-Sharkawi, six child care providers and two customers have filed litigation since the vote results were announced: child care providers Jamie and Joseph White, Yohanes Kifle, Fulvia DiBenedetto, El-Sharkawi and her husband Hussein, Patricia Warner, and Oksana and Brian Downs; and parents Janine Leete and David Nemetz.

Clark said he is not seeking a compromise from the HOA that would infringe on local zoning laws, but authority for these businesses to operate just as they do in other areas of the county. "We're not looking to go beyond anything legal."

"If there's something that can be done to work it out outside of court, we're definitely open to it. But if it does go to court, we feel confident the ruling will go along with the earlier [Virginia Supreme Court] decision [on a separate home business case]," Clark said.

In an earlier court date, Clark filed a motion stating that Lansdowne's covenants were ambiguous, which is the focus of the current lawsuit. Clark cited a June 8 Virginia Supreme Court decision in which the court ruled that when a community's covenants are ambiguous, they should be viewed in favor of free use of land.

Kenneth Chadwick, of Chadwick, Washington, Moriarty, Elmore & Bunn of Washington, DC, represents the HOA. Repeated attempts to contact Chadwick were not successful.

The HOA board told residents that legal costs incurred by ongoing litigation might be covered by the HOA's insurance policy.

Butch Porter, a child-care customer who is not involved in the lawsuit, said even if the amendment had been approved through the homeowner vote, there would still be financial strains put on the providers.

"Four kids can't pay the mortgage," Porter said. "That 'compromise' [of a maximum of five children] was a deal breaker."

Although the child-care operations would not have to shut down immediately under the HOA action, it will cause problems for many of the clients, Porter said.

"When your kids are under 2, there aren't a lot of alternatives. I really don't want to switch," he said.

Porter went on saying that the larger problem with the covenants is that the child-care providers rely on their home businesses as a livelihood.

"We're talking about people having to sell their houses," Porter said.

No court hearing date has been set.
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