Board of Sup'rs of Fairfax County v. Allman

• Decision Date: 20 January 1975
• Citation: 211 S.E.2d 48,215 Va. 434
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Roy G. ALLMAN, Trustee, et al.
• Court: Virginia Supreme Court

Page 48

211 S.E.2d 48

215 Va. 434

BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Roy G. ALLMAN, Trustee, et al.

Supreme Court of Virginia.

Jan. 20, 1975.

Frederic Lee Ruck, County Atty. (George A. Symanski, Jr., Asst. County Atty., on brief), for appellant.

John T. Hazel, Jr., Fairfax (Francis A. McDermott, Hazel, Beckhorn & Hanes, Fairfax, on brief), for appellees.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Roy G. Allman, James H. Swart, Mary F. Swart, William L. Bryant, Frederick A. Babson, Jr., M. Seth Horne and William B. Ingersoll, Sr., hereinafter called Allman, filed their zoning application C--222 with the appropriate officials of Fairfax County, Virginia, requesting that a tract of land in the County containing 302.96 acres, more or less, be rezoned from the existing RE--1 zoning category (which permits one single-family dwelling per acre) to the PDH--3 zoning category (which permits a minimum of three planned development dwelling units per acre). The existing RE--1 zoning permitted 273 single-family homes on the subject property. Allman proposed 988 units under the PDH--3 category.

The Planning Commission of Fairfax failed by a tie vote to recommend either denial or approval of Allman's application and, accordingly, it was forwarded to the Board of Supervisors of Fairfax County, hereinafter called the Board, without recommendation of the Planning Commission. The Board declined to amend its zoning ordinance, by a vote of five to three, and denied the application.

Thereafter Allman filed a motion for a declaratory judgment in the court below, alleging, among other things, that the action of the Board in refusing to rezone his land and in denying his application was illegal, arbitrary, capricious, unlawful and without substantial relation to the public health, safety or general welfare. Following an extensive hearing, the trial court held that the Board's failure to amend was unlawful and entered an order on July 23, 1973, directing that the Board, on or before September 11, 1973, reconsider its action. At this stage of the proceeding the Board deliberated and, disagreeing with the decision of the trial court, filed its notice of appeal and assignments of error on August 21, 1973, and its petition for appeal with this court on November 23, 1973.

The Board failed to reconsider the rezoning application as directed by the lower court, and Allman petitioned the court for further relief. On November 15, 1973, the court below ordered 'that the subject property be and it hereby is, rezoned to the PDH--3 District, and Defendant Board is directed to cause its agents to make appropriate notations upon the zoning records of Fairfax County in accord with this Order'. The implementation of the order was stayed pending appeal and final disposition thereof. The Board duly filed its notice of appeal and assignments of error.

Allman filed a motion to dismiss the Board's petition for appeal of the order entered July 23, 1973 upon the ground that it was not a final order. The Board's position is that this order adjudicated the principles of the cause and was appealable. In view of the stay granted by the court on November 15, 1973, and the status of the records before this court, it is unnecessary for us to consider the motion.

The dispositive issues here are whether the Board's refusal to rezone Allman's land was without substantial relation to the public health, safety and general welfare, and whether the trial court exceeded its authority in rezoning the property.

The Allman property is located in the western portion of Fairfax County immediately adjacent to the Loudoun County boundary line. The land lies on both sides of Highway #228, about one-half mile south of its intersection with Route 7. Highway #604 is contiguous and one of its northern boundaries. Sugerland Run is an eastern boundary. The Hiddenbrook Subdivision is on the south. To the west and across the county line in Loudoun is the residue of the Allman property, 100 acres, which has Highway #625 as one of its northern boundaries. The property is approximately 1/2 mile north of the Town of Herndon and 2.5 miles northwest of Reston.

This court is not a stranger to the problems attending the phenomenal growth of Fairfax County in recent years. We have considered numerous cases detailing the efforts of the governing body of the County to cope with these problems. The original pressures emanated from Washington, D.C., and therefore the eastern portion of the County developed first and more rapidly than its western portion. In 1956 the Board endeavored to restrict development in the western two-thirds of Fairfax by zoning the area for one and two acre lots. Its rationale was that public facilities in the developed eastern one-third required prior attention. This policy of restrictive large lot zoning was disapproved by us in Board of Supervisors v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959). Reston, described as an innovative concept in planned residential communities, was formed in 1962. At about the same time the Town of Herndon, designated as a rural community-commercial center, began its growth.

In 1963 the County adopted the Western County Development Plan which anticipated surburban clusters around Reston, Herndon, Sugarland Run, and other areas near the Allman property. This plan envisioned developments at densities of approximately 2.5 units per acre. During the 1960's the County was divided into planning districts. The Allman property is located in the Upper Potomac Planning District, which contains 43,699 acres and includes Reston and Herndon. The Upper Potomac Plan is a detailed comprehensive land use plan, also referred to as the Master Plan, and was adopted by the Board in 1970. It provides for a suburban density cluster of 2.5 units per acre along Route 228 between Herndon and Route 7, and this cluster includes the Allman property. In effect it continued the cluster concept of the Western County Development Plan.

It is conceded that the density and use requested by Allman is a reasonable use of his property. Rosser H. Payne, a professional planner, and former employee of Fairfax County for 17 years, testified that it would be an error and a complete reversal of County policy to retain this property in the RE--1 category. Payne also said that there were public facilities sufficient to support the Allman application in every respect and that the application 'is in full accord with everything that has been written by the county with regard to this western county Upper Potomac planning district plan, both in the original plan and the revised edition'.

The evidence further shows that while the Allman property could be developed without loss if it remained in the RE--1 category, its value, as of the time of trial, if zoned R--12.5 of PDH--3 (either category being acceptable to Allman) was approximately $2,467,000 greater than if it remained in the RE--1 category. It was clearly established that the property is suitable for a more valuable use than RE--1, and that the County has consistently planned a more valuable use for it.

It is also conceded that a critical housing need for law and moderate income families exists in the County. This need was noted by us in Fairfax County v. DeGroff, 214 Va. 235, 236, 198 S.E.2d 600, 601 (1973). The evidence in that case was such that Mr. Justice Harman was prompted to state: 'The hearing before the trial court clearly demonstrated both a demand and an urgent need for housing units for law and moderate income families in Fairfax County. Indeed, the uncontroverted evidence indicates that the need then existed there for 10,500 such dwelling units'. It was estimated by a witness that of the land available in the Upper Potomac Planning District for development an overwhelming percentage is zoned to require one acre or more per dwelling unit, and that this results in the vast majority of housing being built for those enjoying a high income bracket.

While the witnesses introduced by Allman testified that, by and large, adequate public facilities were available or would become available as the project developed, the witnesses for the Board stressed the present inadequacy of all public facilities in the area.

Route #228 is a Virginia state primary highway from Herndon north to Route 7. Mr. J. D. Pammel, Director of the Board's Division of Zoning Administration, testified that this road had a high priority for future improvement and had been designated as a four-lane, depressed median, divided highway in the state primary system. Presently it is a two-lane primary road carrying approximately 22% Of its capacity. It has been noted that the Loudoun County portion of the Allman property adjoins Virginia State Highway #625 on the north. In addition, Sugarland Road (Route 604) adjoins the property on the west. The developer would provide the necessary roads, sidewalks, streets and alleys within the development at his own cost.

Water supply for the property would come from the same source that presently serves Reston and Herndon, that being the Goose Creek system of Fairfax City. It does not appear from the evidence that there is any shortage of water or that there should be any problem in providing the development with an adequate water supply.

The evidence of the Board was that the schools were not adequate to take care of the increase in school population that would be generated by the development. However, Mr. Thomas Whitworth, an official of the Fairfax County school system, testified that this increase was in accord with the numbers anticipated in the County's comprehensive plan and that it would be accommodated. Apparently this accommodation would occur in the same manner the County has accommodated the steady increase in school population in other sections of the County. This could be done, Whitworth testified, by an accelerated building...