Board of Sup'rs of Henrico County v. Fralin and Waldron, Inc., 790752

• Decision Date: 12 June 1981
• Docket Number: No. 790752,790752
• Citation: 278 S.E.2d 859,222 Va. 218
• Court: Virginia Supreme Court
• Parties: BOARD OF SUPERVISORS OF HENRICO COUNTY, et al. v. FRALIN AND WALDRON, INC. Record

Page 859

278 S.E.2d 859

222 Va. 218

BOARD OF SUPERVISORS OF HENRICO COUNTY, et al. v. FRALIN AND WALDRON, INC.

Record No. 790752.

Supreme Court of Virginia.

June 12, 1981.

William G. Broaddus, County Atty., Robert D. McIlwaine, III, Richmond (Joseph P. Rapisarda, Jr., Asst. County Atty., Frederick T. Gray, Williams, Mullen, Christian, Pollard & Gray, Richmond, on briefs), for appellants.

William B. Poff, Roanoke, Walter F. Witt, Jr., Richmond (Diane McQ. Strickland, Roanoke, William A. Walsh, Jr., Richmond, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Hunton & Williams, Richmond, on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

COMPTON, Justice.

In this land use dispute, a landowner's optionee has succesfully attacked in the trial court a local governing body's decision to approve piecemeal downzoning of undeveloped property. The main issue on appeal is whether the governing body adduced sufficient evidence in the court below to make questions of mistake or change of circumstances fairly debatable. Incidental to the main issue is whether the optionee had standing to sue.

The subject property is a nearly triangular 16.64-acre parcel of land situated on the east side of Woodman Road in northern Henrico County. A flood plain, at places 200 feet wide and containing dense vegetation, separates the property from single-family dwellings to the east and south. Woodman Road, a two-lane roadway, separates the property from single-family houses to the west. Vacant land lies to the immediate northeast.

Prior to 1964, the subject property had been zoned R-3, single-family residential, as the result of a 1959 comprehensive rezoning. In 1964, appellant Board of Supervisors of Henrico County granted an application to rezone the subject property to R-5, which permitted construction of apartments with a maximum density of about 14.5 dwelling units per acre, or a total of 240 apartment units.

In 1976, appellee Fralin & Waldron, Inc., a private land developer, entered into the first of several exclusive option contracts to purchase the subject property from the owner, Virginia National Bank. Fralin & Waldron then commenced intensive efforts to develop the property. In March of 1978, the developer applied to the County for approval of a plan of development (POD) for construction of a 197-unit apartment project to be called Woodman West. In May of 1978, an attorney for A. N. Silverman and others, residents of the surrounding area, filed an application with the Board requesting that the zoning classification of the property be amended from R-5 to R-3, a category that would not permit apartment development.

In June of 1978, because appellant Planning Commission of Henrico County had failed to approve or disapprove the POD within 60 days, the developer filed one of the proceedings involved in this appeal. As permitted by Code § 15.1-475, the developer petitioned the trial court to enter an order approving the POD.

On July 12, 1978, the Board approved the application rezoning the Woodman West property to R-3. On the same day, in the other proceeding involved in this appeal, the developer amended a previously filed bill for declaratory judgment and asked the trial court to rule that the Board's decision to rezone was arbitrary, capricious, erroneous, unlawful piecemeal downzoning and, therefore, null and void.

About two weeks later, the Planning Commission disapproved the POD because the use sought was "inappropriate or unauthorized" within the R-3 zoning classification.

Subsequently, the trial court heard evidence, mostly ore tenus, and considered numerous exhibits presented by the parties. In two comprehensive, detailed, carefully documented letters, written in December of 1978 and January of 1979, the trial court found, inter alia, that Fralin & Waldron had standing to seek review of the 1978 rezoning and that such rezoning was null and void. In the February 1979 judgment order appealed from, the trial court approved the POD and ordered that the subject property remain zoned as R-5. From the rulings made in the separate cases, we awarded the Board and the Planning Commission this appeal.

Upon the threshold, we address the standing question. The Board (hereinafter with the Planning Commission sometimes referred to as the County) contends the trial court erred "when it determined that the prospective developer, a mere optionee having no legal or equitable interest in the property" could claim the benefit of principles of zoning law applicable to "landowners." Specifically, the County argues, this developer as an optionee may not properly claim the benefit of the rule of Fairfax County v. Snell Corp., 214 Va. 655, 202 S.E.2d 889 (1974), to be examined in detail infra. We disagree.

The developer's declaratory judgment proceeding was filed under Code § 8.01-184 to -191. Under these statutes, a trial court has the power to issue declaratory judgments in "cases of actual controversy," in "instances of actual antagonistic assertion and denial of right." § 8.01-184. The statutes on the subject are remedial and are to be "liberally interpreted and administered with a view to making the courts more serviceable to the people." § 8.01-191. A plaintiff has standing to bring a declaratory judgment proceeding if he has "a justiciable interest" in the subject matter of the litigation, either in his own right or in a representative capacity. Lynchburg Traffic Bureau v. Norfolk & Western Railway, 207 Va. 107, 108, 147 S.E.2d 744, 745 (1966).

When Fralin & Waldron filed the declaratory judgment proceeding in June of 1978, it had possessed for more than two years the contractual right to purchase the subject property for $228,000 from Virginia National Bank. The first exclusive option was executed in April of 1976. In August of 1977 the option was exercised and the developer entered into a contract to purchase the land, contingent upon acceptable federal funding being obtained for the proposed project and upon approval of the POD by Henrico County. Subsequently, the contract expired and the developer acquired another exclusive option to purchase, dated in June of 1978. During the two-year period, the developer had filed the POD and expended at least $39,000 in development costs.

Manifestly, there was an actual controversy existing between the developer and the County. But more importantly, the controversy was "justiciable" insofar as Fralin & Waldron was concerned; there was a real and substantial dispute that was appropriate for judicial determination, as opposed to a dispute or difference of "hypothetical or abstract character." Black's Law Dictionary 777 (5th ed. 1979). The developer's interest by virtue of the options was not "hypothetical" or "abstract" because, as an optionee, it had an exclusive, irrevocable, binding contractual right to purchase the real estate according to the terms and conditions of the several option agreements. See Shirley v. Van Every, 159 Va. 762, 770, 167 S.E. 345, 347-48 (1933). Consequently, Fralin & Waldron had standing to sue and we shall apply the Snell rule under these circumstances.

Turning to the central issue in this appeal, we will initially examine settled rules of appellate review in zoning cases that are applicable under these circumstances. Upon review of a trial court's determination that the granting of a rezoning request is null and void, we accord the court's finding, as in the usual case, a presumption of correctness. We also, however, give full credit to the presumption of validity of the legislative action in question and then, assimilating the two presumptions, we examine the record to determine whether the trial judge's finding is supported by credible evidence. See Fairfax County v. Jackson, 221 Va. 328, 334, 269 S.E.2d 381, 385 (1980), quoting Loudoun County v. Lerner, 221 Va. 30, 34-35, 267 S.E.2d 100, 103 (1980).

Further, we review other basic zoning principles appropriate to the present case. A local governing body's action in granting rezoning is legislative action, presumed to be reasonable. "The presumption is not conclusive; it stands until surmounted by evidence that the action of the legislative body was unreasonable." 221 Va. at 333, 269 S.E.2d at 384. "Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of reasonableness. If evidence of reasonableness is sufficient to make the question fairly debatable, the ordinance 'must be sustained'. If not, the evidence of unreasonableness defeats the presumption of reasonableness and the ordinance cannot be sustained." Fairfax County v. Snell Corp., 214 Va. at 659, 202 S.E.2d at 893.

When, as here, the validity of a piecemeal downzoning ordinance is attacked and the contestant makes a prima facie showing "that since enactment of the prior ordinance there has been no change in circumstances substantially affecting the public health, safety, or welfare, the burden of going forward with evidence of such mistake, fraud, or changed circumstances shifts to the governing body. If the...