Board of Sup'rs of James City County v. Rowe, 740994

Decision Date13 June 1975
Docket NumberNo. 740994,740994
Citation216 S.E.2d 199,216 Va. 128
PartiesBOARD OF SUPERVISORS OF JAMES CITY COUNTY et al. v. Malvin S. ROWE et al. Record
CourtVirginia Supreme Court

Howard W. Dobbins, Richmond (William A. Young, Jr., Richard M. Price, Wallerstein, Goode & Dobbins, Richmond, on brief), for appellants.

Robert C. Fitzgerald, Fairfax (Fitzgerald & Smith, Fairfax, on brief), for appellees.


POFF, Justice.

Upon a motion for declaratory judgment filed by the landowners 1 against the Board and another, 2 the trial court declared Article 8A of Chapter 20, Zoning Ordinance of James City County, including Sections 12--13 through 12--13--8 incorporated therein (hereafter 8A), facially unconstitutional in its entirety. On appeal, the Board asks us to reverse the judgment and enter final judgment declaring 8A valid in its entirety, or, in the alternative, to reverse the judgment, sever those portions of 8A found unconstitutional, and 'provide guidelines' for 'constitutionally acceptable' alternatives.

Landowners are the owners of 24 of 51 parcels of land in a 58-acre tract fronting a distance of about 1.4 miles on the southern side of U.S. Route 60, which, at this point, is an undivided, five-lane highway. The 58-acre tract (hereafter 'the subject property') is bounded on the west by the City of Williamsburg and on the east by property owned by the Anheuser-Busch Company. The property opposite the subject property fronting on the north side of Route 60 is traversed by the main line of the C. & O. Railroad. The property south of the subject property is undeveloped land owned by Colonial Williamsburg Foundation. The land north of Route 60 is zoned B--1 ('general' business). The Anheuser-Busch property is zoned M--1 and M--2 ('limited' and 'general' industrial) and has been developed in part as an industrial, commercial, and residential complex, and in part as the Busch Gardens, a 'tourist attraction'.

On January 10, 1973, the Board, by a vote of 3 to 2, enacted 8A in its original form. Under 8A, drafted with the technical assistance of Anheuser-Busch personnel, the subject property was rezoned from its B--1 classification to a new classification termed 'Business Tourist Entry District, B--2'. In its final form, 8A requires landowners within the B--2 district to (1) limit use of their property to hotels, motels, service stations ('with minor repair and under cover'), gift shops, antique shops, and restaurants (other than 'fast food' or 'drive-in' establishments); (2) build only on lots no less than 150 feet wide (or 120 feet wide for lots existing on January 10, 1973); (3) 'set back' all buildings at least 75 feet from the 'back of highway curb' on Route 60, or from the 'top of the outer slope of the drainage way . . . if no such curb exists'; (4) dedicate the outer 55 feet of this setback for a service road, including curbs, sidewalks, and landscaped median strip; (5) construct that road 'in accordance with the applicable standards of the Virginia Department of Highways' and maintain the median strip; (6) provide a 10-feet perimeter open space adjoining property lines on the sides and rear and a 10-foot perimeter open space adjacent to buildings; (7) landscape and maintain such perimeter areas in 'good condition'; and (8) submit all preliminary site plans to the 'Architectural Design Review Board', a five-man body appointed by the Board for two-year terms.

The landowners filed their motion praying for a declaration that these land use restrictions and obligations, as applied to their particular parcels, are unconstitutional. In a decree overruling the Board's demurrer, the trial court found that the motion 'constitutes a challenge to the validity of Article 8A . . . as a whole, and not as it affects any particular plaintiff' and ruled that 'the evidence in the trial of this case shall be limited to the validity or invalidity of the ordinance as it affects all property owners in a B--2 zone'. This ruling became and remains the law of the case.

By final decree entered June 12, 1974, the trial court found

'that Article 8A . . . in its entirety, including (amendments thereto) . . . deprives the Complainants and owners in said B--2 zone of property and the reasonable use thereof without due process of law or just compensation, discriminates against said property owners, and imposes unreasonable restrictions upon the use of the properties within said B--2 zone, contains vague and indefinite language, and includes purposes and provisions not authorized by law'.

Upon that finding, the trial court declared that 8A violates 'Amendments V and XIV of the Constitution of the United States of America and Section 11 of Article I of the Constitution of Virginia' and is 'illegal, void, and of no effect.'

Some of the questions posited by the numerous assignments of error are interrelated. For the sake of convenience and clarity, we will consider them in topical categories.


On appeal, the Board relies on three of its grounds of demurrer, Viz., that the motion failed to allege a justiciable controversy; that the motion failed to allege an inadequate remedy at law; 3 and that the motion failed to allege an exhaustion of administrative remedies.

Under Code § 8--578 (Repl.Vol.1957), an action for declaratory judgment shall not 'be open to objection on the ground that a judgment or order merely declaratory of right is prayed for', and '(c)ontroversies involving the interpretation of . . . statutes, municipal ordinances and other governmental regulations, may be so determined', provided there is an 'actual antagonistic assertion and denial of right.' To invoke the jurisdiction of the court, '(t) he controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment.' City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964).

The 'legality of an ordinance is tested not only by what has been done under its provisions but what may be done thereunder.' City of Winchester v. Glover, 199 Va. 70, 72, 97 S.E.2d 661, 663 (1957). When, as here, a property owner alleges that a zoning ordinance creates discriminatory, arbitrary, and capricious classifications bearing no substantial relation to the public health, safety, or welfare, or that a zoning ordinance imposes land use restrictions or affirmative land use obligations so unreasonable as to constitute a 'taking' of property without compensation or due process of law, or that a zoning ordinance is otherwise unconstitutional, and that he has suffered damage to his property located in a district affected by such ordinance, he has stated a case of actual controversy within the meaning of Code § 8--578 and one that is 'ripe for judicial adjustment.'

'If the ordinance is unreasonable and unconstitutional in its entirety and the result of such unreasonableness is to confiscate plaintiff's property or to discriminate against it, then an action for a declaratory judgment lies.' 2 A. Rathkopf, The Law of Zoning and Planning 35--5 (1972).

The Board argues, however, that even when the constitutionality of a legislative act is challenged, 'a court of equity does not have jurisdiction unless the complainant lacks an adequate remedy at law' and 'the courts will not take jurisdiction of a zoning matter, even though a constitutional issue is raised, until the administrative remedy has been fully exhausted.'

A landowner aggrieved by a zoning classification has a right to apply to the zoning administrator for a variance, a right to appeal to the County Board of Zoning Appeals, and a right to obtain judicial review of that board's decision. Code §§ 15.1--495, --497 (Repl.Vol.1973, Cum.Supp.1974); Article 13, James City County Zoning Ordinance. See also, Lake George Corporation v. Standing, 211 Va. 733, 180 S.E.2d 522 (1971). However, when the relief sought constitutes a challenge to the constitutionality of a zoning ordinance in its entirety, 4 only a variance providing total exemption would vindicate the rights asserted. But, under Code § 15.1--495, 'all variances shall be in harmony with the intended spirit and purpose of the ordinance' in order 'that the character of the district will not be changed'. A variance releasing landowners from all the restrictions and obligations complained of here would be contrary to the intended 'spirit and purpose' of 8A, and therefore would be beyond the purport of Code §§ 15.1--495, --497.

Since there was no administrative remedy equal to the relief sought (and thus no adequate legal remedy by judicial review), we hold that the motion properly stated a justiciable cause of action and the trial court correctly overruled the demurrer.

* * *

* * *

We consider next the three broad constitutional issues raised by the Board's assignments of error, Viz., whether the B--2 zoning of the subject property to the exclusion of other areas is a discriminatory classification in violation of the equal protection guarantee; whether the land use obligations imposed by 8A violate the due process guarantee and whether the land use restrictions imposed by 8A violate the due process or equal protection guarantees.


'The governing body of any county . . . may, by ordinance, divide the territory under its jurisdiction or any substantial portion thereof into districts of such number, shape and area as it may deem best suited to carry out the purposes of this article . . .', Code § 15.1--486 (Repl.Vol.1973), and '. . . the regulations in one district may differ from those in other districts.' Code § 15.1--488 (Repl.Vol.1973). Encompassing the specific purposes of zoning ordinances defined in Code § 15.1--489 (Repl.Vol.1973) is 'the general purpose of promoting the health,...

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