2 ELR 20175 | Environmental Law Reporter | copyright © 1972 | All rights reserved


Lee Jackson Development Corporation v. Board of Supervisors of Loudoun County

No. 3839 (Law) (Va. Cir. Ct. March 22, 1972)

The petitioner, a development subsidiary of ITT-Levitt & Sons owning land in the county, appeals the Board's denial of a petition for a zoning change from Agricultural (with a minimum lot size of 3 acres) to Planned Community, allowing a gross density of fourteen persons per acre. A similar, though smaller rezoning granted to a competing developer had sufficient disimilarities such that the Board could reasonably have granted one rezoning request, while denying the other. Even if those disimilarities had not been present, a development which would increase the county's population by one-third may raise substantial issues for the Board to decide relating to health, safety and public welfare, including the costs of providing necessary services. Informal meetings of the developer with the planning staff of the county do not estop the Board from acting to deny the petition. Any consideration by the Board of an alleged desire to slow development and growth in the county was merely incidental to the real issues considered. Petition denied.

Counsel for Petitioner
Lytton H. Gibson
311 Park Avenue
Falls Church, Virginia 22046

Counsel for County
Donald W. Devine
Commonwealth's Attorney
9 North Church Street
Leesburg, Virginia 22075

[2 ELR 20175]

Penn, J.

Memorandum Opinion

The Petitioner, Lee Jackson Development Corporation, a wholly owned subsidiary of the Petitioner, Levitt and Sons, Incorporated, in January 1969, acquired approximately 1181 acres of land in the northeasterly portion of Loudoun County, Virginia, fronting on the Potomac River and on State Route No. 7. The following January it acquired an additional 89 acres of contiguous land. The 1270 acres were zoned "A-2 (Agricultural)" at the time of such acquisition, and have retained such zoning classification. Said land is the subject of the rezoning application here in controversy.

Petitioners filed their application dated 21 July 1970 to have the property rezoned from "A-2", which required a minimum lot area of three acres, to "P.C. (Planned Community) District Zone", which would allow varying residential and commercial uses according to an approved development plan, and permit a gross density of fourteen persons per acre.

The application was revised and resubmitted under date of 6 November 1970, after a "pre-application conference" as "encouraged" by the Ordinance, and after informal meetings with various representatives and employees of the County. The Loudoun County Planning Commission considered the application at its August, September and November 1970 meetings, and at the last meeting recommended approval of the application, as did the planning staff of the County.

The Defendant Board conducted public hearings concerning the application for rezoning on 19 January 1971 and on 2 February 1971, then voting 4-2 to deny Petitioners' application.

Petitioners filed this suit for declaratory judgment, moving the Court to declare the action of the Defendant Board "invalid, void, illegal and unconstitutional" and to enter an order directing the Board to rezone in accordance with Petitioners' application, averring that its action in denying the application was unreasonable, discriminatory, arbitrary and capricious.

The general principles applicable to a judicial review of the validity of zoning ordinances is well settled. The legislative branch of a local government in the exercise of its police power has wide discretion in the enactment and amendment of zoning ordinances. Its action is presumed to be valid so long as it is not unreasonable and arbitrary. The burden of proof is on him who assails it to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare. The Court will not substitute its judgment for that of a legislative body, and if the reasonableness of a zoning ordinance is fairly debatable, it must be sustained. Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 322, 106 S.E.2d 152, 157; West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 288, 192 S.E. 881, 888 (appeal dismissed 302 U.S. 658, 58 S. Ct. 369, 82 L. Ed. 508, rehearing denied 302 U.S. 781, 58 S. Ct. 480, 82 L.Ed. 603). (From the opinion in Boggs v. Board of Supervisors, 211 Va. 488, 490, 178 S.E.2d 508, quoting Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d 390, 395.)

The Petitioners have not challenged the applicable zoning classification. They do not aver, as in Boggs v. Board of Supervisors, supra, that the application of the zoning ordinance has the effect of completely depriving them of the beneficial use of their property by precluding all practical uses. The only question before the Court is whether the application for a rezoning should have been granted.

In order to fully examine the action of the Defendant Board, to ascertain whether or not it was unreasonable, discriminatory, arbitrary or capricious, the Court received in evidence numerous exhibits, most of which were presented by Petitioners, including the transcripts of the hearings conducted by the Board. After fully considering all of the evidence, the Court is of the opinion that Petitioners have failed to bear the burden necessary to entitle them to the relief they seek.

They contend that they had the right to the relief sought because of the County's refusal to follow and implement its Comprehensive Plan, and that the action of the County in refusing to grant the rezoning is plainly arbitrary and capricious considering the plan without going any further.

With that the Court cannot agree. While Section 15.1-456 of the Code of Virginia accords some regulatory effect in certain respects to a comprehensive plan, nonetheless, it is not sacred. It is a plan, but nothing more. While its adoption was almost contemporaneous with Petitioners' application, the timing of its implementation in ensuing years is a matter wholly within the discretion of the legislative body, having due regard to the public health, safety, morals and general welfare.

The report of the Technical Staff, recommending approval of the application, which was adopted by the Commission, was based upon the master plan, which projected its proposals to expected population growth and expansion to the year 2000. Such a projection is valuable as a guide for the future, but it was the present facts and circumstances to which the Council properly looked in deciding whether piecemeal rezoning should be allowed. Board of Commissions v. Edmonds, 240 Md. 680, 215 A.2d 209, 213 (1965).

It is the further contention of Petitioners that they have the right to have the property rezoned on the ground that the County, in refusing to rezone the land, was discriminatory, comparing its treatment of the Boise-Cascade application for rezoning with that [2 ELR 20176] of their own.

It is complained that the County created a new zoning classification for Boise-Cascade contemporaneously with the rezoning to that classification of the Boise-Cascade land, and that Levitt was led down the "Primrose Path" by the County in pursuing its application, at no time being discouraged by the County.

Levitt seeks the same zoning granted Boise-Cascade. There is nocontention that developers other than Boise-Cascade could not qualify for such zoning; only that the effect with respect to Levitt was that of special legislation. The Court observes that the Defendant Board may well have appreciated the desirable aspects of the Levitt planned community, but from its hearings, determined that inadequacies of medical facidities, police, schools, government buildings and other public facilities rendered the application premature. Levitt, or any other developer meeting the requirements of the zoning ordinance as to the zoning classification herein sought, may be granted favorable action upon changed conditions at a later time.

With respect to the pre-application meetings "encouraged" by Section 8D-4.1 of the zoning ordinance, the Court finds that there were many meetings with persons responsible for administering applicable offices of the County. However, Levitt is presumed to have known that rezoning is a legislative function, and that such was not delegated to the planning staff or to the other personnel of the County with whom conferences were held.

"Rezoning by comprehensive plan is a legislative function. Board of County Commissioners of Prince George's [sic] County v. Levitt and Sons, Inc., 235 Md. 151, 158, 200A.2d 670 (1964) and cannot be delegated except upon express authorith." Board of County Commissioners v. Edmonds, supra.The "Primrose Path" presupposes certain naivete as to the activity at hand.

A review of the Boise-Cascade rezoning application makes evident certain material dissimilarities to Petitioners' application. The land area covered by it was less than one-half that owned by Petitioners. Boise-Cascade's land was already zoned "R-17.5", allowing subdivisions with lots having a minimum of 17,500 square feet. Levitt's was zoned "A-2", as previously stated, permitting only one residence on a three acre lot. Boise-Cascade's projected population increase is 7,658; that of Levitt is 13,342.

Even had the properties been the same size, with the same zoning and the projected population the same, presenting identical development plans, the Court could not find that the later application was the victim of discrimination, when such rezoning, in addition to other growth, would increase the population of the County by one-third of its 1968 level. The implications of such upon the health, safety and general welfare of its citizens are obvious.

Petitioners also take the position that the Defendant Board was arbitrary and capricious in the matters which the County considered as a basis for denial of the application and its failure to properly consider other matters justifying the rezoning.

Petitioners claim that the Board of Supervisors decided to halt rapid development of Loudoun County by denying Levitt's application. While one member did use the word "whoa" and indicate opposition to further zoning to accomodate more planned communities at the time of the Board action, from a reading of the transcripts of the hearings and from the other evidence, the Court does not find such to be the basis of the vote of the majority. The Board did not attempt to impose a "moratorium" on certain zoning, as other counties have attempted to do.

While the Defendant Board did consider the economic impact of granting Petitioners' application, it does not appear that this was more than incidental to the real issue. It heard Petitioners upon the detail of the community is planned by Levitt, establishing four identifiable neighborhoods, and providing for both low and high density residential development, as well as commercial. The school and recreational sites were considered, as was a proposed municipal site. Traffic flow and access were under discussion

The Board heard its citizens, both for and against the application, who brought to its attention matters relating to schools, buildings for governmental purposes, hospital facilities, police and fire protection, and availability of employment. Many of these factors were presented with resultant financial implications indicating and adverse economic impact upon the County.

It is apparent that many factors were considered by the Board at the instance of both the developer and the County. Facilities essential to public health, safety and general welfare are not cost-free, and a governing body may consider the economic effect of providing such incidental to a proposed rezoning, along with other considerations.

The Court finds that the action of the Defendant Board does bear a substantial relation to the public health, morals, safety, and general welfare; that its action in denying Petitioners' rezoning application was not clearly discriminatory, unreasonable, arbitrary or capricious; that the reasonableness of its action is fairly debatable; and that this Court cannot, therefore, grant the relief sought herein.


2 ELR 20175 | Environmental Law Reporter | copyright © 1972 | All rights reserved