Board of County Sup'rs of Fairfax County v. Carper

• Decision Date: 16 March 1959
• Docket Number: Nos. 4865,4869,s. 4865
• Citation: 200 Va. 653,107 S.E.2d 390
• Court: Virginia Supreme Court
• Parties: BOARD OF COUNTY SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA v. G. WALLACE CARPER, ET AL. H. GRAHAM MORISON, ET AL. v. G. WALLACE CARPER, ET AL. Record

Page 390

107 S.E.2d 390

200 Va. 653

BOARD OF COUNTY SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA v.G. WALLACE CARPER, ET AL.

H. GRAHAM MORISON, ET AL. v.G. WALLACE CARPER, ET AL.

Record Nos. 4865, 4869.

Supreme Court of Appeals of Virginia

March 16, 1959.

Armistead L. Boothe(William W. Koontz; Boothe, Dudley, Koontz & Boothe, on brief), for plaintiff in error, Board of County Supervisors of Fairfax County.

Roger Fisher(H. Graham Morison; F. Shield McCandlish; Livingston, McCandlish & Prichard, on brief), for plaintiffs in error, H. Graham Morison, Et Al.

Lytton H. Gibson(William H. Hansbarger; Gibson, Hix, Millsap & Hansbarger, on brief), for defendants in error, G. Wallace Carper, Et Al.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

G. Wallace Carper and thirty-one owners of six thousand acres of land in Fairfax county, hereinafter referred to as the appellees, filed this suit for a declaratory judgment, pursuant to § 8-578, 1950 Code, against the Board of County Supervisors, the seven individual members of the Board, the County Executive, and the Commonwealth's Attorney of the county, praying that the amendment to the Fairfax county zoning law known as the 'Freehill Amendment,' adopted by the county Board on August 1, 1956, be declared invalid, void and unconstitutional on the ground that the two-acre lot restriction in the western two-thirds of the county, as it affected their property, was unreasonable and arbitrary, bearing no reasonable or substantial relation to the public health, safety, morals, or general welfare.On motion, the county executive and the commonwealth's attorney were dismissed as partiesdefendant.

H. Graham Morison and seven other parties, representing one thousand owners of 12,000 acres of Fairfax county land, were permitted by the court to intervene on behalf of the county.

The trial court, after hearing the evidence ore tenus and considering many maps and documentary evidence, filed a written opinion and entered an order declaring the 'Freehill Amendment,''as to the petitioners in this matter, to be unconstitutional, invalid and void, insofar as the two-acre restriction contained in said amendment is concerned, because said amendment * * * bears no reasonable or substantial relationship to the general welfare of the owners or residents of the area so zoned, and the 'grandfather clause' contained in said amendment is discriminatory and renders the entire amendment discriminatory. ' To this order we granted the Board of County Supervisors and H. Graham Morison, et al., hereinafter known as the appellants, separate writs of error.

The appellants contend in their assignments of error that (1)the court below erred in holding that the amendment of August 1, 1956(known as the 'freehill Amendment') is unconstitutional, invalid and void insofar as the two-acre zoning restriction is concerned because it bears no reasonable or substantial relationship to the general welfare of the owners or residents of the area so zoned; (2)the court erred in failing to hold that the amendment was in accord with, and is authorized by, § 15-844, 1950 Code, which empowered the Board of County Supervisors to regulate the density and distribution of population, the locations of those areas which may be used as places of residence, agriculture and for other purposes, the percentage of land area which may be occupied, the minimum sizes of yards, courts or other open spaces to promote the health, safety, order, prosperity, conservation of natural resources, and general welfare; (3)the court erred in holding that the 'grandfather clause' in the amendment was discriminatory and unconstitutional; and (4)the court erred in holding that the 'grandfather clause' rendered the entire amendment unconstitutional.

Fairfax county contains over 400 square miles, or over 258,000 acres of land.At the time of the adoption of the amendment to the zoning ordinance it was declared to be the fastest growing county in the United States.Its population increased from 98,000 to 201,000 between 1950 and 1957.The total number of dwellings in the county more than doubled during this period, increasing from 24,000 to 55,000.By 1956 the number of dwellings constructed each year had reached 6,000.

The eastern one-third of the county contains most of the concentrated development.Ninety percent of the county's entire population resides in this area.

In the western two-thirds of the county are the settled communities of Centreville, Chantilly, Dranesville, Floris and Forestville, and the incorporated towns of Clifton, Herndon and Vienna.Outside of these communities and towns, the 170,000 acres in the western two-thirds of the county consist almost entirely of wooded, agricultural and vacant land, land of three-acre tracts and over, and land subdivided into one-half acre lots used for single family residences.

The rapid population growth created the problems of obtaining an adequate sewer system, water supply, fire protection, and schools.

A substantial part of the eastern one-third is now served by a county sewer system, financed by revenue bonds, for which the full faith and credit of the county are pledged.There are also many septic tanks and private sewerage plants serving both the eastern and western areas.A large part of the eastern section obtains its water supply from public service companies serving Falls Church and Alexandria.These companies have not extended their facilities into the western two-thirds of the county to any great extent, although the evidence shows that water is now available in some sections and that it could be made available to other sections in the area.

From 1947 to 1957 the gross bonded debt of Fairfax county rose from $800,000 to $49,300,000, with a further anticipated rise by 1958 to $57,300,000, and, upon the issuance of already authorized school bonds, to nearly $67,000,000.The county's debt caused its bond rating to drop to a lower medium grade.

The original zoning ordinance for the county was enacted February 5, 1941.In 1954 it was codified and enacted as Chap. 6 of the Code of the County of Fairfax, Virginia, 1954.

The 1954 zoning law divided the county into seven districts, including an agricultural district, rural, suburban and urban residential districts, rural and general business districts, and an industrial district.The eastern one-third of the county was zoned generally for three residential districts wherein development was permitted respectively with minimum lots of one-half acre, 12,500 square feet, and 8,400 square feet.The western two-thirds of the county was zoned generally for an agricultural district wherein development was permitted with minimum lots of one-half acre.

Under the 'Freehill Amendment' the county was divided into eleven districts.The eastern one-third of the county was zoned generally for seven residential districts wherein development was permitted respectively within minimum lots of one acre, one-half acre, 15,000 square feet, 10,500 square feet, and 8,400 square feet.The western two-thirds was zoned generally for one agricultural district wherein development was permitted with minimum lots of two acres.Around two incorporated towns and four settled communities the minimum lot size was one acre.

It was the recommendation of the county planning board that the western two-thirds of the county be zoned for a minimum lot size of one acre where no central water and sewer facilities were available, and one-half acre where central water and sewer facilities were available.

The 'Freehill Amendment' contained the usual provision that it should not be construed to affect vested rights, and also the following provisions:

'No provision of this amendment to this chapter representing the size and shape of lots shall affect the size or shape of lots of record prior to the adoption hereof and no provision of this amendment shall prohibit the construction of a single family dwelling on any lot of record prior to the adoption hereof it such a dwelling could have been constructed on that lot prior to the adoption of this amendment.

'For the purpose of this subsection, a lot of record prior to the adoption hereof, shall be deemed to include:

'(a) Lots in deeds, plats or subdivisions of record prior to the effective date hereof.

'(b) Lots embraced in deeds executed and acknowledged but not of record prior to the adoption hereof, provided such deeds are of record within sixty (60) days after the adoption hereof.

'(c) Lots sold under contract in conformity with existing County ordinances, executed and acknowledged prior to the adoption hereof, provided that the deeds for such lots are executed and recorded within ninety (90) days after the adoption hereof, and provided that adjacent lots under contract to the same buyer shall be considered as one lot.

'(B) Nothing in this chapter shall be construed to prevent the subdivision of land into lot sizes conforming to the ordinance of ...