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Although Fairfax County officials celebrated the final piece of financing for the Dulles Metrorail extension coming into place earlier this month, there is still one more potential threat to that funding.

A Tysons Corner business is challenging the legality of the special tax district that is paying the county's share of the rail project cost. A Fairfax County Circuit Court judge ruled in the county's favor earlier this year, but the case is still active and may go before the Virginia Supreme Court.

In late September, the law firm General Counsel P.C. petitioned the Supreme Court on behalf of FFW Enterprises, arguing that the special taxing authority is unconstitutional. The court will hold a writ panel in November or December to determine whether to hear the case, according to James Markels of General Counsel.

Essentially, the case argues that the special tax district violates Article X of the Virginia Constitution, which states that all taxes must be "uniform," Markels said. Because it taxes only commercial properties and not residential ones, the rail tax district violates this provision, he contends.

"You should not be taxing just business owners and business landowners to pay for improvements that everyone uses," he said, noting that homeowners near the planned stations will also benefit from the new rail stations.

Fairfax County has a policy of not commenting on any pending litigation, so the attorney assigned to the case declined to comment for this article.

The suit also challenges the state law that allows localities in Northern Virginia to charge extra real estate tax to commercial landowners and use the revenues for transportation. Both taxing provisions were approved by the Virginia General Assembly.

Under the provisions of state law used to create the two special tax districts to fund the rail project, commercial landowners have to petition the county government and ask to pay additional real estate taxes, and then the Board of Supervisors can create the district and set the rate.

One special tax district covers portions of Tysons Corner and the area around the future Wiehle Avenue Metrorail station in Reston. This district was created in 2004 and is already collecting taxes.

The petition for the second tax district, which will cover the areas around the planned Reston Town Center, Herndon-Monroe and Route 28 Metrorail stations, was filed with the county Oct. 9 and is slated for approval in November.

While it is not relevant to the arguments in the case, Markels said the petition process was driven by large landowners that have the luxury of absorbing the additional costs in anticipation of long-term gains. Plaintiff FFW Enterprises owns one section of a building off Tyco Road, now valued at $560,240, according to county land records.

"Small business owners don't have the wherewithal to make that kind of calculation," Markels said. "It's a bad economy. Now they have to pay more in taxes, and they feel like once Metro gets there, everything's going to be too expensive and they'll have to move."