Bragg Hill Corp. v. City of Fredericksburg
| Decision Date | 15 August 2019 |
| Docket Number | Record No. 180647 |
| Citation | 831 S.E.2d 483 |
| Court | Virginia Supreme Court |
| Parties | BRAGG HILL CORPORATION v. CITY OF FREDERICKSBURG, et al. |
H. Clark Leming, Garrisonville (Peter Basanti; Leming and Healy, on briefs), for appellant.
Kathleen Dooley, City Attorney (David P. Corrigan, Glen Allen; Lester C. Brock, III ; George A. Somerville, Richmond; Harman, Claytor, Corrigan & Wellman, on brief), for appellees.
PRESENT: All the Justices
OPINION BY JUSTICE S. BERNARD GOODWYN
In this appeal we consider whether the rezoning of property, by a city ordinance upon annexation of the property by the city, was void ab initio or violated the procedural due process rights of the property owner. We also consider whether the property owner has a vested right to a particular use of its property because of the pre-annexation approval of a master plan by a county planning commission.
In 1970, Bragg Hill Corporation (Bragg Hill) submitted, to the Spotsylvania County Planning Commission (County Planning Commission) for approval, a master plan (Master Plan) concerning the development of property that Bragg Hill owned in Spotsylvania County (County). The Master Plan showed the proposed development of the Bragg Hill Townhouses project. At the time of the submission of the Master Plan to the County Planning Commission, the County had not yet adopted any zoning ordinance.
The County required the submission of master plans for approval by the County Planning Commission when an owner or developer proposed to develop a large subdivision consisting of multiple sections. Such master plans were a precondition to a preliminary plan, and they were not required to include the detail of a preliminary subdivision plan. Master plans were required to include the layout of the proposed sections, lots, subdivision roads, and, when applicable, water and sewer plans. In December 1970, the County Planning Commission approved the Master Plan.
On October 18, 1972, Bragg Hill presented a revised master plan (Revised Master Plan). On November 15, 1972, the County Planning Commission approved the Revised Master Plan, which noted a density of eight dwelling units to an acre for the development.
Between December 21, 1970 and December 13, 1972, the County Board of Supervisors approved the final subdivision plats of the first six sections of the Bragg Hill Townhouses project. Bragg Hill diligently pursued development of the first six sections of the project.
On April 12, 1973, the County adopted a zoning ordinance. All of the property in Bragg Hill’s Revised Master Plan was zoned R-2. The County’s R-2 zoning classification allowed a development density of eight dwelling units per acre.
By the end of the 1970s, Bragg Hill had fully built out and constructed the first six sections of the Bragg Hill Townhouses project. Bragg Hill did not seek the Board of Supervisors’ approval to build out Sections 9, 10, and 11 of the Bragg Hill Townhouses project (the Property) because it encountered "difficult prevailing economic conditions."
In the early 1980s, the County and the City of Fredericksburg (City) began negotiations over the City’s proposed annexation of County land. After an annexation court approved the annexation, the City annexed 2,963 acres from the County on January 1, 1984. The annexed land included the Property.
Pursuant to Fredericksburg City Code § 18.1-17, which was enacted in 1972, upon annexation on January 1, 1984, all of the annexed land—including the Property—was automatically zoned into the City’s R-1 zoning classification.1 This City zoning classification has a permissible housing density of two dwelling units per acre. The R-1 zoning classification does not permit the by-right development of townhouses.
On April 23, 1991, Bragg Hill submitted an application to the City to rezone approximately 49 acres of its annexed land, including the Property, from R-1 to R-8. On July 16, 1991, the City held a public hearing on the application.
Bragg Hill stated that, upon the 1984 annexation, the 49 acres were rezoned from the County’s R-2 zoning classification to the City’s R-1 zoning classification. Bragg Hill explained that it wanted a rezoning of its 49 acres of land from the City’s R-1 classification to R-8, which was similar to the County’s R-2 zone, so that Bragg Hill could develop its property according to the Revised Master Plan, which had been approved by the County Planning Commission.
At the hearing, "[t]here was considerable discussion on the possibility of a ‘partial rezoning’ versus the requested rezoning of the entire 49[ ] acres." Bragg Hill stated it had "no problem" with a partial rezoning, agreeing to develop only part of the 49 acres and "to hold off on the development" of the remainder, which included the Property.
On August 27, 1991, the City adopted ordinance 91-23 (1991 Ordinance), which rezoned only a portion of the 49 acres to an R-4 zoning classification, as a middle ground between the land’s current zoning designation as R-1 and Bragg Hill’s request for a rezoning to an R-8 zoning classification. The Property is in the part of Bragg Hill’s 49 acres that was not rezoned by the 1991 Ordinance, and the Property continued to have an R-1 zoning classification.
On August 21, 2009, Bragg Hill filed a request that the City’s zoning administrator determine that Bragg Hill had the vested right to develop the Property according to the Revised Master Plan, despite the Property being zoned R-1 by the City. The zoning administrator determined that Bragg Hill did not have a vested right to develop the Property according to the Revised Master Plan because Bragg Hill did not provide any proof of approval of the Master or Revised Master Plans for the Property by the County Board of Supervisors. The zoning administrator also observed that, even if the plans had been approved by the County Board of Supervisors, their approval expired after five years under Code § 15.2-2260(F), and thus no significant affirmative governmental act, which would be the basis for finding a vested right, remained in effect.
Bragg Hill appealed the zoning administrator’s determination to the Board of Zoning Appeals (BZA). The BZA upheld the zoning administrator’s decision on September 24, 2010. Bragg Hill did not appeal the BZA’s determination.
On February 11, 2014, the City passed ordinance 14-06 (2014 Ordinance) pursuant to an "application to rezone approximately 1,121 acres of land from R-1 Residential to R-2, R-12, or R-16 Residential." The 2014 Ordinance noted that all of the subject land was part of the 2,963 acres annexed by the City in 1984, and was initially classified as R-1 "with the intent to rezone the land to a more appropriate zoning district at a later date." It also noted that, while some of the 2,963 acres had already been rezoned, the purpose of the 2014 Ordinance was to "reclassify the remaining land into a zoning district." The 2014 Ordinance stated that the City conducted public hearings in December 2013 and January 2014 before adopting the 2014 Ordinance. As a result of the passage of the 2014 Ordinance, the Property was rezoned from R-1 to an R-2 zoning classification.2
On October 10, 2017, Bragg Hill filed a three-count declaratory judgment complaint in the Circuit Court of the City of Fredericksburg against the City. Count I seeks a declaration that the City’s zoning of the Property, which occurred upon annexation, violated Virginia statutory law and was void ab initio. Bragg Hill asserts that the City’s automatic rezoning of the Property violated Virginia law because the City "failed to adopt any ordinance or resolution ratifying the decrease in the dwelling unit density of the Property ... after a public hearing."
Count II seeks a declaration that Bragg Hill has a vested right to develop the Property according to the Revised Master Plan.
Bragg Hill asserts that the County Planning Commission’s approval of the Revised Master Plan in 1972 constituted a significant affirmative governmental act, which created a vested right entitling it to develop the Property. Bragg Hill alleges that it relied on this approval by incurring expenses and obligations when it constructed water, sewer, road improvements, and buildings on surrounding parcels, and granted rights-of-way to the County.
Count III seeks a declaration that the change in zoning that occurred upon annexation was void ab initio because it violated Bragg Hill’s procedural due process rights provided by Article I, § 11 of the Virginia Constitution and the Fifth and Fourteenth Amendments of the U.S. Constitution. Bragg Hill alleges that the City violated Bragg Hill’s procedural due process rights by failing to give notice and hold a public hearing regarding the change in zoning that occurred upon annexation. It contends that the City’s automatic rezoning of its Property deprived Bragg Hill of a vested property interest in developing the Property at a density of eight dwelling units per acre, as stated in the Revised Master Plan.
On November 13, 2017, in response, the City filed a plea of the statute of limitations, pleas in bar, and demurrers asserting that Bragg Hill’s claims had fully matured, did not involve an actual controversy, and were not appropriate for declaratory judgment.
Regarding its plea of statutes of limitations, the City asserts that Counts I and III were barred because their respective causes of action accrued in 1984. It argued the 30-day appeal period under Code § 15.1-496.1 (1984) barred Count I, and that the two-year limitations period for personal injuries under Code § 8.01-243(A) and the five-year period for property injuries under Code § 8.01-243(B) barred Count III.
The City argued the circuit court lacked jurisdiction over all three counts under Code §§ 15.2-2204(E) and -2285(F) because Bragg Hill failed to contest...
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