Ames v. Town of Painter, 890380

• Decision Date: 02 March 1990
• Docket Number: No. 890380,890380
• Citation: 389 S.E.2d 702,239 Va. 343
• Court: Virginia Supreme Court
• Parties: Charles AMES, et al. v. TOWN OF PAINTER, et al. Record

Page 702

389 S.E.2d 702

239 Va. 343

Charles AMES, et al. v. TOWN OF PAINTER, et al.

Record No. 890380.

Supreme Court of Virginia.

March 2, 1990.

James S. Ellenson, on brief, for appellants.

Jon C. Poulson (Drummond, Bloxom & Poulson, Accomac, on brief), for appellees.

Anthony Herman (Laura L. Sardo, Steven J. Rosenbaum, Covington & Burling, Washington, D.C., on brief), representing amicus curiae, Anabel Perez and Carlos Gomez Ayala, for appellants.

Present: All the Justices.

RUSSELL, Justice.

This is an appeal from an order reversing the grant of a special use permit by a board of zoning appeals.

Charles B. Ames and his wife, Jean, farmed approximately 190 acres in Accomack and Northampton Counties, raising primarily cucumbers and potatoes, relatively labor-intensive crops. Before 1988, they had relied mainly upon local labor, which they often found to be unavailable when needed during the harvest season. Because other agricultural operations in the area had been more successful when using migrant labor, the Ameses intended to employ migrant workers on contract during the 1988 and subsequent seasons.

The Ameses owned a 52-acre tract on U.S. Route 13, in Accomack County, adjacent to the southern boundary of the Town of Painter, four-tenths of a mile from the center of town. The tract contained an old, frame, two-story, six-room tenant house which had been occupied by six migrant workers and their children during the 1987 growing season. The Ameses developed a plan for the conversion of the tenant house into a migrant labor camp to accommodate 20 occupants, and, in March 1988, applied to the Board of Zoning Appeals of Accomack County (the Board) for a special use permit.

The Ameses' land was zoned "Agricultural District A." The Accomack County Zoning Ordinance did not permit the requested use in that district as a matter of right, but provided, in § 3-2-15, that such a use could be authorized by a special use permit granted by the Board. The language appearing on the application for a special use permit required that the application be signed by the owners of all lands within 500 feet of the boundary lines of the affected property, indicating their approval or disapproval of the requested use. Fourteen neighboring owners signed the application, four expressing approval and ten expressing disapproval. In addition, 226 citizens living in the immediate area filed a petition stating their "strong opposition" to the proposal.

The Board conducted a hearing on May 26, 1988, at which the Ameses and a number of other witnesses testified. At the conclusion of the hearing, a member of the Board, citing the requirements of the zoning ordinance, moved that the application be denied. The member stated his view that the proposed use would not be harmonious with the community and that it would have a harmful effect upon the property rights and values of neighboring owners. The motion failed for lack of a second. Another member then made the following motion:

Mr. Chairman, I realize that this is a situation which everyone has talked about this morning, this labor has to be and also it is an effect on the community, and I am somewhat familiar with what goes on in labor camps, and it is true, the larger the labor camp, the more problems you have. This is unfortunately, is near a residential area. I am willing to make a motion if it can be accepted to permit a camp there of at least ten people. Six last year and no one even knew they lived in the community, and if this gentleman can get by with ten I would make this recommendation or a motion that we approve it for ten people to be housed there.

That motion carried by a vote of four to one. Except for those two motions, there was no discussion or debate among the board members. The Board expressed no findings or conclusions. A special use permit was issued for a migrant-labor camp, limited to 10-person occupancy.

The Town of Painter, its mayor and vice-mayor, and the 226 objecting petitioners, brought the case to the circuit court by petition for certiorari. The court heard the matter ore tenus on December 19, 1988, reviewing the record made before the Board and hearing the testimony of Mr. Ames and other witnesses. At the conclusion of the hearing, the court ruled that the Board had failed to follow the guidelines of the zoning ordinance, reversed the Board, and dismissed the Ameses' application. We granted the Ameses an appeal.

Pursuant to enabling legislation, Accomack County has adopted a zoning ordinance which delegates authority to the Board to grant special use permits under certain conditions prescribed by the ordinance. Section 10-2-5 provides, in pertinent part:

Before issuance of a Special Use Permit the Board of Zoning Appeals shall consider the general character of the surrounding neighborhood in order to facilitate the preservation and creation of an attractive and harmonious community. The Board of Zoning Appeals shall also consider the environmental effect on scenic, historic and waterfront areas including the property rights and values of adjoining and nearby property owners.

On appeal, the Ameses contend that the trial court failed to accord the Board's decision the presumption of correctness to which it is entitled, and impermissibly substituted the court's judgment for that of the Board. The Town argues that the Board's decision could not be sustained because it failed to comport with the standards prescribed by the zoning ordinance.

In County Board of Arlington v. Bratic, 237 Va. 221, 377 S.E.2d 368 (1989), we recently restated the principles of law governing the standards of judicial review which govern use-permit cases, which are the same as those governing judicial review of zoning enactments. Id. at 226-27, 377 S.E.2d at 370-71. A board of zoning appeals, acting under a delegated power to grant or refuse special exceptions and special use permits, acts in a legislative capacity. Id. at 227, 377 S.E.2d at 371. Therefore, its action is presumed to be reasonable. The presumption is rebuttable, but it stands until surmounted by evidence of unreasonableness. Id. The litigant attacking the legislative act has the burden of producing probative evidence of unreasonableness. If he produces such probative evidence, the legislative act cannot be sustained unless the governing body (or in cases of this kind, the Board of Zoning Appeals) meets the challenge with some evidence of reasonableness. Id. The governing body is not required to go forward with evidence sufficient to persuade the fact-finder of reasonableness by a preponderance of the evidence. It must only produce evidence sufficient to make the question "fairly debatable," for the legislative act to be sustained. Fairfax County v. Southland Corp., 224 Va. 514, 522-23, 297 S.E.2d 718, 722 (1982); see also Bratic, 237 Va. at 227, 377 S.E.2d at 371. "An issue may be said to be fairly debatable when, measured by both quantitative and qualitative tests, the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions." Bratic, at 227, 377 S.E.2d at 371 (quoting Loudoun Co. v. Lerner, 221 Va. 30, 34, 267 S.E.2d 100, 102 (1980) (citation omitted)).

In a different but analogous context, we have consistently held that a board of zoning appeals, exercising its administrative functions in considering a zoning variance, must make certain findings of fact required by statute. If it does not do so, "the parties cannot properly litigate, the circuit court cannot properly adjudicate, and this Court cannot properly review the issues on appeal." Packer v. Hornsby, 221 Va. 117, 121, 267 S.E.2d 140, 142 (1980). Those prerequisite findings are, in variance cases, crucial to the exercise of the power of judicial review which the General Assembly has vested in the courts.

Although no findings of fact are required by statute when a board of zoning appeals acts in a legislative capacity to consider a special use permit, the observations we made in Packer v. Hornsby are instructive nonetheless. Code § 15.1-497 vests in the circuit court a power of judicial review of "any decision of the board of zoning appeals" by writ of certiorari. The issuance of such a writ on petition of "any person or persons jointly or severally aggrieved," id., is not discretionary, but is a matter of right. Bd. Sup. of Fairfax County v. Bd. Zoning Appeals, 225 Va. 235, 238, 302 S.E.2d 19, 21 (1983). Whether the board of zoning appeals has exercised an administrative function in considering a variance, or a legislative function in considering an application for a special use permit, it is equally essential to the exercise of judicial review that a sufficient record be made to enable the reviewing court to make an objective determination whether the issue is "fairly debatable."

Judicial review of legislative acts must be approached with particular circumspection because of the principle of separation of powers, embedded in the Constitution. That principle precludes judicial inquiry into the motives of legislative bodies elected by the people. Telephone Company v. Newport News, 196 Va. 627, 639, 85 S.E.2d 345, 352 (1955). Where the courts are called upon to review the acts of officials, agencies, and boards exercising...