Boggs v. Board of Sup'rs of Fairfax County

• Decision Date: 18 January 1971
• Citation: 211 Va. 488,178 S.E.2d 508
• Parties: Gail E. BOGGS et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Virginia.
• Court: Virginia Supreme Court

Page 508

178 S.E.2d 508

211 Va. 488

Gail E. BOGGS et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Virginia.

Supreme Court of Appeals of Virginia.

Jan. 18, 1971.

Thomas O. Lawson, Fairfax (Charles L. Shumate, Kelly, Louk, Lawson & Chess, Fairfax, on brief), for appellants.

Donald C. Stevens, County Atty. for the County of Fairfax, for appellee.

Before SNEAD, C.J., and I'ANSON, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

I'ANSON, Justice.

Plaintiffs, Gail E. Boggs and Mary E. Boggs, filed in the court below a motion for a declaratory judgment against the Board of Supervisors of Fairfax County (Board) praying that the R-10 (single family residences) zoning classification as it applies to their 6.7 acres of vacant land in Fairfax County be declared invalid, and that the Board's refusal to grant their request to rezone the property to one of the commercial categories, namely C-D, C-O, or C-OL, which would permit the construction of an office building and concomitant commercial facilities, be declared unreasonable, arbitrary and capricious. Plaintiffs further prayed that the court rezone the land to the C-OL category, which would permit them to construct a four-story office building and concomitant commercial facilities.

After an ore tenus hearing and consideration of the transcript of the public hearing before the Board on plaintiffs' application for rezoning, the lower court held that the zoning classification as applied to plaintiffs' land was not invalid, and that the Board was not unreasonable, arbitrary or capricious in refusing to rezone the property. We granted plaintiffs an appeal.

Plaintiffs' land fronts on the north side of Route 7, approximately 1500 feet east of the Route 7 intersection with Interstate Route 495.

The uncontradicted evidence shows that under the county's zoning and subdivision control ordinances, plaintiffs would be required to expend approximately $185,000 to make extensive on-and-off-site improvements, particularly for purposes of drainage, before the land could be utilized under the R-10 category.

N. McKenzie Downs, conceded by all counsel to be an outstanding appraiser of property in the area, testified that considering the cost of the on-and-off-site improvements, 'No one in his right mind * * * would ever consider going in and developing (the subject property) under an R-10 category.' He further said, 'I don't think that you would have a purchaser in the market place at any price if you could only consider R-10 zoning on it.'

Mr. Downs also testified that from 1960 through 1968 there had been a 'fantastic' change in the character of this particular community; that more than 33 parcels along Route 7 had been rezoned from single family residential to apartments and commercial; and that there had been a distinct trend away from single family housing along Route 7. He further stated that property diagonally across the street from plaintiffs' property had been recently zoned to the C-O (commercial office) category, and in his opinion there was no difference between that parcel and plaintiffs' land.

James D. Pammel, principal zoning coordinator for the county, was the only witness called by the Board. He testified that the R-10 category for plaintiffs' property was not appropriate, but the R-T (townhouse) category would be. He acknowledged, however, that it would not be economically feasible to develop the land under the R-T category. He further said, 'An office use, not necessarily a high-rise office, but an office use probably would not be inconsistent with the character of the area.'

The transcript of the public hearing on plaintiffs' application for rezoning shows that after the Board denied the request it directed the planning staff of the county 'to restudy, with an eye to determining the most appropriate use, the area abutting on the north side of Route 7 (the area in which plaintiffs' land is situated) between the City of Falls Church and Interstate Route 495.'

Plaintiffs first contend that the R-10 zoning classification as applied to their land is confiscatory and invalid.

In Board of County Supervisors of Fairfax County v. Carper, 200 Va. 653, 660, 107 S.E.2d 390, 395 (1959), we summarized the established principles of zoning law as follows:

'The general principles applicable to a judicial review of the validity of zoning ordinances are well settled. The legislative branch of a local government in the exercise of its police power has wide discretion in the enactment and amendment of zoning ordinances. Its action is presumed to be valid so long as it is not unreasonable and arbitrary. The burden of proof is on him who assails it to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety,...