Based on the opinion of City Attorney Ignacio Pessoa that visiting Alexandria Circuit Court Judge Frank A. Hoss "applied the wrong law" in his recent opinion upholding Mirant in their suit against the city, the decision has been made to file an appeal.
"It's not a matter of if. We have definitely decided to appeal the decision. We are only waiting for the judge's order to be entered. Once that is done we have 30 days to file our appeal with the Virginia Supreme Court," Pessoa said.
"He applied his judgment for that of City Council in deciding what is the best way to protect the health of the citizens of Alexandria. He also erroneously concluded that the state air quality control law totally preempts local authority," he said.
Pessoa expects the order to be entered within the next week. That is when the clock starts running on the 30 day time frame.
THE CASE CENTERED on a recommendation by the Planning Commission and adopted by City Council pertaining to a text amendment to the City zoning ordinance and the revocation of a Special Use Permit granted to the Mirant Potomac River Power Generating Station in 2004. Those actions were challenged by Mirant leading to the lawsuit.
Mirant attorney Paul Kiernan, Holland and Knight, argued, "The city took this action not based on any violation of the SUP but on the supposed violation of federal and state law dealing with emissions. The city even agreed that there had been no violation of the SUP as such."
The SUP was granted to Mirant in 1989 for its 18,000-square-feet administrative building and the plant's Transportation Management Plan when the company replaced temporary trailers at the North Old Town site. As noted by attorney Harry P. Hart, representing Mirant during the original Planning Commission public hearing, "This SUP has nothing to do with the operation of the plant."
However, there was also a text amendment, approved by the Planning Commission and Council, which changed the status of the "entire plant operation" from "nonconforming" to "noncomplying." It is this text amendment that Pessoa maintains "applies to the entire plant operation and forces them (Mirant) to close in seven years or apply for a new SUP."
"If the city is to prevail, it will be under the text amendment," Pessoa said. However, the Supreme Court must first agree to hear the appeal.
"The Supreme Court does not have to take the appeal. That will be our first step -- to get them to do that. If they do, we are probably looking at a time frame of anywhere from six to 18 months to have another decision," Pessoa said.
FOLLOWING THE ALEXANDRIA Circuit Court case, attorney John Britton, of Schnader Harrison Segal & Lewis, arguing for the city, said, "The judge ruled against us on both the SUP revocation and the text change reasoning that we used the wrong legal vehicles."
By making the text amendment, the city maintained "the operation of the plant is not consistent with the surrounding residential area due to emissions and serious violations of the National Ambient Air Quality Standards." Britton also argued that "every municipality has a general nuisance ordinance and that this plant impacts its neighbors adversely."
Kiernan responded that, the city's action in both revoking the SUP and making the text amendment "violated due process by acting unilaterally to rezone the Mirant facility." Hoss agreed.
As for the appeal, Dave Thompson, corporate public relations, Mirant, said "We have every confidence that the court's decision will stand."