Board of Sup'rs of Fairfax County v. Williams, 730996

• Decision Date: 13 June 1975
• Docket Number: No. 730996,730996
• Citation: 216 Va. 49,216 S.E.2d 33
• Court: Virginia Supreme Court
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Thomas R. WILLIAMS et al. Record

Page 33

216 S.E.2d 33

216 Va. 49

BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Thomas R. WILLIAMS et al.

Record No. 730996.

Supreme Court of Virginia.

June 13, 1975.

George A. Symanski, Jr., Asst. County Atty. (Frederic Lee Ruck, 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.

CARRICO, Justice.

In this zoning case, the trial court declared 'unreasonable, arbitrary and capricious' the denial by the Board of Supervisors of Fairfax County of two applications for rezoning filed by the owners of adjoining tracts of land. The Board seeks reversal of the trial court's declaration.

The land in question consists of two undeveloped tracts totaling approximately 418 acres located in the southern portion of Fairfax County. Existing zoning, RE--1, in effect for a number of years, permits development on the basis of one single-familydwelling unit per acre.

On July 27, 1970, Thomas R. Williams and James L. McIlvaine, owners of one of the tracts, filed an application with the Board for rezoning of their land to R--12.5, a classification which permits up to 2.9 dwelling units per acre. On June 14, 1971, Van Metre Associates, Inc., equitable owner of the second tract, filed an application for similar rezoning. The Board refused to hear the rezoning requests and was forced by court order to take action on the applications. On November 20, 1972, the Board denied the Williams-McIlvaine application, and on December 18, 1972, it denied the Van Metre application.

The owners of the respective tracts of land then proceeded by way of separate petitions for declaratory judgment to have declared void the Board's denial of the rezoning requests. The two matters were consolidated, and, after a protracted hearing, the trial court, by order entered July 25, 1973, held that the Board's denial of the rezoning applications was unreasonable, arbitrary, and capricious. In its order, the court directed the Board to reconsider the applications within a reasonable time and to rezone the land to a category permitting development at a density higher than permitted under the existing RE--1 classification. The Board took no action on the court's directive, but instead prosecuted this appeal.

In the trial court, the inquiry focused upon two issues: (1) whether certain public facilities, namely, highways, schools, and sewage disposal, were available to serve the land in question, and (2) whether the Board's denial of the rezoning requests was discriminatory. On appeal, the same two issues are paramount.

The Board takes the position that its denial of the rezoning requests was 'mandated by state law and deficiencies in public facilities.' The state law on planning and zoning, the Board argued, authorizes it to decide 'when' public facilities 'will be available,' requires it to plan the growth of Fairfax County and to provide public facilities 'consonant with the efficient and economical use of public funds' (Code § 15.1--427), and demands that its zoning actions protect against 'undue density of population in relation to the community facilities existing or available' (Code § 15.1--489).

Public facilities to serve the land in question are inadequate, the Board asserts, and it has determined by an adopted policy that higher-density development of the area in which the land in question is located 'should not occur until public facilities are adequate.' Its adopted policy, part of a comprehensive plan for the area in question, reflects an awareness, the Board says, of the greater need for public facilities in other areas of the county where urban densities already exist, in contrast to the area in question where, although there is pressure for urbanization, there does not yet exist the capacity to support development at higher densities. Its adopted policy, the Board maintains, constitutes a rational plan recognizing the inadequacy of existing facilities, which requires that the area in question develop at one residential unit per acre until 'sometime in the future' when provision of additional public facilities 'might' warrant 'a more intense use of that land.' And, the Board concludes, because its decision to deny the present rezoning requests was consistent with the rational scheme of its adopted policy, the denial was not discriminatory.

We have no quarrel with the Board concerning its contention, set forth in the foregoing statement of its position, that in its zoning actions it must protect against 'undue density of population in relation to the community facilities existing or available' and must make provision for public facilities 'consonant with the efficient and economical use of public funds.' The Board's position in this case, however, is at odds, in its essential elements, with the important findings of the trial court. Immediately upon conclusion of the hearing below, the trial judge stated:

'The Court finds as a matter of fact from the evidence that the public facilities to serve this land are either presently available or will be available in the reasonably foreseeable future.

'The property along the entire eastern boundary of the Van Metre land is presently zoned (for higher density development). Just to the north of this land are commercial sites plus townhouses, not too many hundred feet away from that little tip on the Van Metre land. And also, next to that tip is (property zoned for townhouse development).

'Under these circumstances, the Court is of the opinion that to keep this land in one-acre zoning is unreasonable and arbitrary and capricious.'

Thus, the trial court found that (1) public serve the land in question, (2) nearby similarly-situated property had already been rezoned for higher-density use, (3) existing zoning of the land in question was unreasonable and therefore invalid, and (4) it was discriminatory and therefore arbitrary and capricious to deny higher-density zoning to the land in question. The crucial question is whether the evidence supports the trial court's findings.

The evidence shows that the land in question is located in the Middle Run subwatershed of the Pohick Creek watershed, in an area of Fairfax County south of the Capital Beltway and west of Interstate Highway No. 95. The Pohick Creek watershed, containing approximately 20,000 acres, consists of three segments: Main Branch containing approximately 11,000 acres, Middle Run containing approximately 2500 acres, and South Run containing approximately 6500 acres.

Because of urban development spreading southwardly from Washington, D.C., the Board in 1964 adopted a sewerage plan for the Pohick watershed as part of the county's integrated sewer system. In 1965, issuance of bounds in the sum of $20 million to implement construction of the integrated system was approved by county voters.

The Pohick sewer plan provided for a sewage treatment plant near the mouth of Pohick Creek and a trunkline serving the Main Branch. The plan provided for no sewerage service in the South Run area and contemplated construction with funds from private developers of a trunkline to serve the Middle Run area. In early 1966, the county entered into a written contract with two developer-owners whereby the latter agreed to defray the cost, several hundred thousand dollars, to construct a trunkline to serve all the land in the Middle Run area. Under the agreement, the developers were to be reimbursed by the county from assessments imposed upon other property owners using the line. As a result of the agreement, a 15-inch trunkline was constructed to the eastern boundary of the land involved in the present rezoning applications.

On February 14, 1966, the county planning staff submitted to the Board a proposed comprehensive plan for the future development of the Pohick watershed. At the time, much of the land in the watershed was zoned for single-family occupancy on one-acre or larger lots, although substantial areas had recently been rezoned for development on smaller lots. The proposal emphasized that low-density 'development does not provide for the efficient and economical provision of public facilities such as streets and highways, effective mass transit facilities, sewer, water, and drainage systems.'

The Board adopted the plan on January 18, 1967. The plan provided for residential development in the Main Branch and Middle Run areas on smaller lots, furnishing a population density of 10 persons per acre. Pursuant to the plan, a number of parcels of land were rezoned for higher-density development, including property contiguous to the eastern boundary of the land involved in the present controversy.

In July, 1968, because the 1967 plan had not been interpreted as intended and a 'sprawl development pattern was emerging,' the Board ordered its planning staff to restudy the Pohick watershed. In January, 1969, the staff submitted its report, recommending that the Main Branch area be declared a 'development zone,' where development would be encouraged, and that the Middle Run and South Run areas be declared 'holding zones,' where development would be postponed.

In discussions on the restudy report, the Board was advised by the county attorney that 'the holding zone technique, as propounded, is just not sustainable from a legal standpoint.' Supervisor Bowman, the leading advocate on the Board of a policy of 'staging or timing' development, acknowledged that the 'holding zone concept,' without further enabling legislation, was 'beyond the realm of authority' of the Board. He pointed out, however, that, although the Board had unsuccessfully sought General Assembly authority 'relating to the timing of development,' ¹ there were 'other tools available' to accomplish the same objective as the 'holding zone concept,' namely, 'the object of inhibiting, or deferring, or restraining development...