B-168096, JUL 6, 1971

B-168096: Jul 6, 1971

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GSA LEASE - REFORMATION REQUESTED ADVISING THAT NO DECISION WILL BE MADE ON THE REQUEST TO REFORM A LEASE WITH GSA COVERING A PORTION OF AN OFFICE BUILDING IN FALLS CHURCH. GAO WILL NOT RENDER A DECISION WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION. THAT THE LESSORS WERE IN VIOLATION OF COUNTY ZONING ORDINANCES WHICH. AN APPEAL WAS FILED WITH THE CIRCUIT COURT OF FAIRFAX COUNTY BY THE LESSORS. THE COURT HANDED DOWN THE FOLLOWING JUDGMENT: "IT APPEARING TO THE COURT THAT THE ORDINANCES OF THE COUNTY OF FAIRFAX PERTINENT HEREIN PERMIT AND REQUIRE THE PROPERTY CONCERNED HEREIN TO BE USED FOR MOTOR VEHICULAR PARKING AND THAT SAID LAW DOES NOT LAWFULLY PROHIBIT THE CHARGING OF FEES FOR THE USE OR RESERVATION OF SUCH PARKING SPACES FOR EMPLOYEES OF TENANTS OF THE BUILDING FOR WHICH SUCH MOTOR VEHICULAR PARKING IS PROVIDED.

B-168096, JUL 6, 1971

GSA LEASE - REFORMATION REQUESTED ADVISING THAT NO DECISION WILL BE MADE ON THE REQUEST TO REFORM A LEASE WITH GSA COVERING A PORTION OF AN OFFICE BUILDING IN FALLS CHURCH, VA., OCCUPIED BY THE NAVAL AIR SYSTEMS COMMAND. BECAUSE THE CIRCUIT COURT OF FAIRFAX COUNTY HAS REVERSED THE DECISION OF THE BOARD OF ZONING APPEALS, THE LESSORS MAY NOW LAWFULLY COLLECT PARKING FEES FROM NAVAIR EMPLOYEES. FURTHER, AN APPEAL FROM THE COURT'S ORDER APPEARS LIKELY, AND GAO WILL NOT RENDER A DECISION WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION.

TO BENDHEIM AND RATNER:

WE REFER TO YOUR LETTER OF JUNE 11, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF COLUMBIA PIKE LIMITED PARTNERSHIP, INC., REQUESTING REFORMATION THROUGH RENEGOTIATION OF LEASE NO. GS-03-B-5374 BETWEEN THE ABOVE LESSOR AND THE GENERAL SERVICES ADMINISTRATION (GSA), AS LESSEE, COVERING A PORTION OF AN OFFICE BUILDING IN FALLS CHURCH, VIRGINIA, OCCUPIED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR).

THE REQUEST FOR REFORMATION RESULTS FROM A PARKING DISPUTE BETWEEN THE LESSOR AND A PARKING ASSOCIATION WHICH REPRESENTS NAVAIR EMPLOYEES WHO UNTIL APRIL 1970 UTILIZED THE PARKING FACILITIES AT THE BUILDING. SINCE APRIL 1970 THE EMPLOYEES, ON ADVICE OF COUNSEL, CONTINUED TO USE THE BUILDING'S PARKING FACILITIES, BUT CEASED PAYING THE MONTHLY PARKING RATES CHARGED BY THE LESSORS. THIS ADVICE FOLLOWED A DETERMINATION DATED MARCH 18, 1970, BY THE SUPERVISING FIELD INSPECTOR, ZONING, HOUSING AND LICENSING, COUNTY OF FAIRFAX, THAT THE LESSORS WERE IN VIOLATION OF COUNTY ZONING ORDINANCES WHICH, IN HIS OPINION, PROHIBITED THE ASSESSMENT OF FEES FOR PARKING FROM OCCUPANTS OF AN OFFICE BUILDING FOR PARKING SPACES REQUIRED TO BE FURNISHED BY THOSE ORDINANCES. SUBSEQUENTLY, ON JUNE 1, 1970, THE BOARD OF ZONING APPEALS OF FAIRFAX COUNTY AFFIRMED THE DECISION OF THE INSPECTOR. YOU REQUEST THAT THE LEASE BE REFORMED SO AS TO PROVIDE ADDITIONAL PAYMENTS BY THE GOVERNMENT FOR PARKING FOR EMPLOYEES OF NAVAIR AT THE BUILDING.

AN APPEAL WAS FILED WITH THE CIRCUIT COURT OF FAIRFAX COUNTY BY THE LESSORS. ON JUNE 11, 1971, THE COURT HANDED DOWN THE FOLLOWING JUDGMENT:

"IT APPEARING TO THE COURT THAT THE ORDINANCES OF THE COUNTY OF FAIRFAX PERTINENT HEREIN PERMIT AND REQUIRE THE PROPERTY CONCERNED HEREIN TO BE USED FOR MOTOR VEHICULAR PARKING AND THAT SAID LAW DOES NOT LAWFULLY PROHIBIT THE CHARGING OF FEES FOR THE USE OR RESERVATION OF SUCH PARKING SPACES FOR EMPLOYEES OF TENANTS OF THE BUILDING FOR WHICH SUCH MOTOR VEHICULAR PARKING IS PROVIDED. IT IS, THEREFORE

"ADJUDGED, ORDERED, AND DECREED THAT THE DECISION OF THE BOARD OF ZONING APPEALS HEREIN BE AND THE SAME IS HEREBY REVERSED, VOID, AND OF NO EFFECT."

THE COURT REVERSED THE DECISION OF THE BOARD OF ZONING APPELAS BASED UPON ITS CONSIDERATION OF THE MATERIAL ISSUES INVOLVED IN THE PENDING REQUEST FOR REFORMATION BEFORE OUR OFFICE. FURTHERMORE, THE LESSORS, BY VIRTUE OF THE CORT'S ORDER, MAY NOW LAWFULLY COLLECT PARKING FEES FROM THOSE NAVAIR EMPLOYEES UTILIZING ITS PARKING FACILITIES, PRECLUDING THE NECESSITY FOR REFORMATION OF THE LEASE. IN VIEW THEREOF, AND IN LIGHT OF THE FACT THAT AN APPEAL FROM THE COURT'S ORDER APPEARS LIKELY, WE ARE CLOSING OUR FILE ON THE MATTER WITHOUT FURTHER ACTION. THIS IS CONSISTENT WITH THE POLICY OF OUR OFFICE NOT TO RENDER A DECISION WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. SEE B- 170268, APRIL 14, 1971.

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