Arogas Inc v. Frederick County Bd. Of Zoning Appeals

• Decision Date: 16 September 2010
• Docket Number: Record No. 091502.
• Citation: 698 S.E.2d 908,280 Va. 221
• Court: Virginia Supreme Court
• Parties: AROGAS, INC., et al.v.FREDERICK COUNTY BOARD OF ZONING APPEALS, et al.

280 Va. 221

698 S.E.2d 908

AROGAS, INC., et al.v.FREDERICK COUNTY BOARD OF ZONING APPEALS, et al.

Record No. 091502.

Supreme Court of Virginia.

Sept. 16, 2010.

Mark E. Stivers, Stephenson, for appellants.

Robert T. Mitchell, Jr. (Hall, Monahan, Engle, Mahan & Mitchell, Winchester, on brief), for appellees.

Local Government Attorneys of Virginia, Inc. (Curt G. Spear, Jr., Noah B. Klein, Assistant County Attorneys, on brief), amici curiae in support of appellees.

Present: All the Justices.

Opinion by Chief Justice LEROY ROUNTREE HASSELL, SR.

I.

In this appeal we consider whether petitioners, who challenge the validity of a proffer that a board of supervisors amended and approved after a public hearing, have stated a cause of action against a board of supervisors. We also consider whether the circuit court erred by remanding the proceeding to the zoning administrator and requiring him to accept the site plan application for review.

II.

Petitioners Arogas, Inc., (Arogas) and T.P. Manning filed their amended “petition for writ of certiorari and declaratory judgment” against the Frederick County Board of Zoning Appeals and Frederick County Board of Supervisors (collectively the County). Petitioners alleged that the Board of Supervisors violated § 165-13(A) of the Frederick County Code because the Board amended a proffer after the initial public hearing and approved the amended proffer without holding a subsequent public hearing. Frederick County Code § 165-13(A) requires among other things, that a final proffer should be received in writing, signed by the owner or applicant, five days prior to an advertised public hearing. The County filed a demurrer to the amended petition for declaratory judgment and asserted, among other things, that the petitioners failed to state a cause of action to declare “void ab initio” the subject zoning proffer. The circuit court entered a judgment in favor of the County, and the petitioners appeal.¹

III.

A.

Initially, we note that we will not consider the petitioners' original petition because the petitioners failed to incorporate or refer to their initial petition in the amended petition. We have held that “ ‘when a circuit court sustains a demurrer to an amended [petition] which does not incorporate or refer to any of the allegations that were set forth in a prior [petition], we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.’ ” Hubbard v. Dresser, Inc., 271 Va. 117, 119-20, 624 S.E.2d 1, 2 (2006) (quoting Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136 (2001)); Dodge v. Randolph-Macon Woman's College, 276 Va. 10, 14, 661 S.E.2d 805, 807 (2008).

We also observe that a demurrer admits the truth of all properly pleaded material facts. “ ‘All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer does not admit the correctness of the pleader's conclusions of law.’ ” Dodge v. Randolph-Macon Woman's College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)); accord Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 449 (2006); Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 131-32, 575 S.E.2d 858, 861 (2003).

B.

The petitioners alleged the following facts in their amended petition that we must consider as true for purposes of this appeal. On April 27, 2004, the Frederick County Board of Supervisors held a public hearing regarding a rezoning application. Prior to the hearing, applicants George M. and Carol T. Sempeles submitted a written proffer prohibiting the wholesale or retail sale of diesel fuel on a certain 3.4-acre portion of land that the Sempeles owned, which was part of a larger parcel. After a public hearing, the Board limited the scope of the proffer to prohibit only “[a]ny use involving the retail or wholesale sale of diesel fuel for over the road truck carriers.” Some Board members expressed concern with allowing “truck stops,” which are a permitted use in a B2 zone where the 3.4-acre parcel is located. The Board members also discussed the fact that they did not want to prohibit all diesel sales; at which point the original proffer was amended verbally as stated above. The amended proffer was signed by the landowners on May 3, 2004, after the Board had voted unanimously to approve the rezoning.

In April 2006, Triad Engineering, Inc. (Triad Engineering) submitted a proposed site plan on behalf of Manning and Arogas, as the developer, to the Frederick County Planning Department. The Sempeles were the record owners of the property when the site plan was submitted, and Arogas received a deed for the property from the Sempeles in March 2007. The petitioners desire to develop the approximately 3.4 acres of the real property with a 5,625 square foot service station and a convenience market, and this appeal is limited to the use of the 3.4-acre property. According to the proposed plan, the service station will include “filling areas” and “pumps” for the retail sale of gasoline and diesel fuel. Mark R. Cheran, the Frederick County Zoning Administrator, informed Triad Engineering that the County's planning department would not process the site plan application because of a “discrepancy between the proposed use of [the] property and the property's current zoning designation and associated proffers.”

The petitioners alleged that the amended proffer is void ab initio because the Sempeles did not submit the amended proffer to the Board of Supervisors five days before a public hearing in violation of § 165-13(A) of the Frederick County Code. Additionally, the petitioners alleged that contrary to the zoning administrator's conclusions, service stations that sell retail gasoline and diesel fuel are permitted uses in business general B2 districts, pursuant to Frederick County Code § 165-82.

The petitioners alleged that the amended proffer “clearly does not [prohibit] truck stops, nor does [the proffer] prevent diesel sales to small and large diesel consuming vehicles including but not limited to cars, pick-up trucks, dump trucks, step-vans[,] [sport utility vehicles], buses, motor homes, campers and the like.” Continuing, the petitioners pled that “an ‘over the road truck carrier’ is not defined in the county code, nor otherwise capable of definition on its face.”

IV.

A.

Frederick County Code § 165-13, entitled “Conditional rezoning,” states in relevant part:

“The applicant for a rezoning may proffer in writing, before the public hearing by the Board of Supervisors, conditions to be placed on the approval of the rezoning.

“A. Procedures. Proffers shall be presented to the Planning Commission at the advertised public hearing for the rezoning. The Planning Commission shall make a recommendation on the acceptance of the proffers and the rezoning to the Board of Supervisors following the procedures described for amendments to this chapter. Final proffers shall be received in writing, signed by the owner and applicant, at least five (5) days prior to the advertised hearing of the Board of Supervisors.”

Additionally, Frederick County Code § 165-11, entitled, “Board of Supervisors public hearing,” states in relevant part:

“Before approving and adopting any amendment, the Board shall hold at least one public hearing thereon, pursuant to public notice as required by § 15.2-2204 of the Code of Virginia after which the Board may make appropriate changes or corrections in the proposed amendment; provided, however, that no additional land may be zoned to a different classification than was contained in the public notice without an additional public hearing after notice required by § 15.2-2204 of the Code of Virginia.”

(Emphasis added).

Arogas and Manning argue that the circuit court erred when it sustained the demurrer on the basis that they failed to plead a viable cause of action. We disagree.

As required by § 165-13 of the Frederick County Code, the Sempeles, who were the owners of the property during the 2004 rezoning, submitted a proffer in writing to the Board of Supervisors before the Board conducted its public hearing.² Among the conditions that the Sempeles included in the written proffer was a condition that no diesel fuel would be sold on the rezoned property.

The petitioners do not allege that the Sempeles' original proffer was untimely or violated § 165-13(A) of the Frederick County Code. Rather, the petitioners allege that the Board of Supervisors voted to amend the original proffer after the public hearing was closed. The petitioners argue that the amended proffer was not filed five days prior to an advertised hearing in violation of § 165-13(A) of the Frederick County Code. The petitioners imply that § 165-13(A) of the Frederick County Code requires that the Board of Supervisors hold an additional public hearing before voting on a proffer that the Board amends after the initial public hearing. The plain language of Frederick County Code § 165-13(A), however, does not mandate that an additional public hearing must be held to consider a proffer that the Board of Supervisors amends after the initial public hearing.

A purpose, among others, of the plain language in the County Code is to enable the Board of Supervisors to obtain input during the public hearing from the public and affected property owners regarding written proffers. Frederick County Code § 165-11 authorizes the Board of Supervisors to “make appropriate changes or corrections in the proposed amendment” after the public hearing. We find no language in the Frederick County Code that prohibits the Board of Supervisors, with the written consent of the applicant property owners, from amending the written proffer after discussion and public hearing. The Board is not required to hold an additional public hearing each time the Board amends a proffer. Otherwise, the public hearing...