Comm. The v. City of Norfolk
| Decision Date | 06 February 2015 |
| Docket Number | Civil Docket No.: CL14-4778 |
| Court | Circuit Court of Virginia |
| Parties | Re: Committee of the Petitioners, ex rel. Lewis J. Taylor, et al., v. City of Norfolk |
Adam Melita, Esq.
Office of the City Attorney
City of Norfolk
810 Union Street, Room 900
Norfolk, Virginia 23510
Danielle Kruer, Esq.
Venter, Warman, Henderson PLLC
101 West Main Street, Suite 1800
Norfolk, VA 23510
Dear Counsel:
The current litigation raises concerns regarding the right of citizens to referendum and the City of Norfolk's power to establish zoning classifications. In the balance rests the ultimate disposition of what is widely considered to be a historically significant property dating back to the earliest years of the City, Talbot Hall.
Between 1799 and 1802, Solomon Talbot built Talbot Hall for his son, Thomas. On the property, Thomas planted two tree lines to align with the position of the sun on the summer and winter solstice yard. Subsequently, in 1954, the Talbot Hall property (the "property") was gifted to the Episcopal Diocese of Southeastern Virginia ("the Diocese").
Some time prior to March 2014, the Diocese entered into a contract to sell the property to Talbot Hall West, LLC ("the LLC"). The members of the LLC consist of private individuals seeking to build single-family homes on the property. However, because the Property was zoned "Institutional," a zoning classification incompatible with the purchaser's plans for residential development, the contract is conditioned upon the Property being rezoned residential. Consequently, on June 24, 2014, the Norfolk City Council adopted three (3) Ordinances ("the Ordinances") rezoning the parcel and allowing the development of fourteen single family homes. The Council also made them effective immediately pursuant to Section 15 of the Norfolk City Charter ("the Charter").
The dispute at hand has arisen because the Talbot Hall Foundation, a group formed to promote the preservation of Talbot Hall, believes that the rezoning fails to preserve the integrity of Talbot Hall in its historic setting by placing home sites between the house and the Lafayette River.1 Soon after the Council approved the rezoning of the property, members of the Foundation formed the Committee of Petitioners ("the Committee") to initiate a Referendum to repeal the rezoning ordinance. Pursuant to Va. Code § 24.2-684.1, the petition calling for referendum was properly filed with this court and awaits determination that it is legally valid, and thus a referendum should be ordered.
In response to the referendum petition, the Diocese sent a letter to the city manager informing him that it would demolish the manor house if the referendum succeeds in repealing the Ordinances. (Letter from Samuel J. Webster, counsel for the Diocese, to Marcus D. Jones, City Manager, City of Norfolk, (Sept. 4, 2014)). On September 9th, the city manager issued a certification, pursuant to Section 40 of the Charter, claiming that the Ordinances are necessary to protect the City from an imminent loss and consequently are not subject to referendum. (Letter from Marcus D. Jones, City Manager, City of Norfolk, to Council, City of Norfolk, (Sept. 9, 2014)).
Armed with the certification under Section 40, the City filed a Motion to Intervene to contest the Committee's right to a referendum to repeal the Ordinances. That motion was granted by this Court on November 24, 2014 and the City filed the present motions challenging the right to a referendum. It should be noted that, the Committee's procedural compliance with City's Charter referendum provisions remain unchallenged.
Most recently, on January 13, 2015, the Court heard testimony and argument in support and opposition to the City's Motion for Summary Judgment, Plea in Bar and Motion to Dismiss.
Essentially there are two issues implicated by the outstanding motions:
1) Whether the law permits the use of a referendum to repeal an effective ordinance rezoning private property; and2) If the law allows a referendum, whether the City's certification under Section 40 exempts these ordinances from referendum.
After due consideration of the evidence adduced at the hearing, the argument of counsel, and the applicable statutes and case law, I find that the City's Motions for Summary Judgment, Plea in Bar, and Dismissal must be denied for the following reasons.
The City's Motion for Summary Judgment asserts that the Ordinances are "exempted by law" from the referendum process provided for in the Norfolk City Charter. It argues that the power to determine zoning classification rests exclusively with the City and cannot be properly delegated to the citizens via referendum. To be entitled to summary judgment, the City must show that no "material fact is genuinely in dispute." Va. Sup. Ct. R. 3:20. A trial court considering a motion for summary judgment must "accept as true those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason." Fultz v. Delhaize Am., Inc., 278 Va. 84, 88 (2009) (citing Dickerson v. Fatehi, 253 Va. 324, 327 (1997); Carson v. LeBlanc, 245 Va. 135, 139-40 (1993)).
The City's challenge begins with the zoning enabling statutes. The City contends that a "review of the overall scheme of the enabling statutes reveals that the power to control the uses of private land by the imposition of zoning districts and their concomitant rules resides exclusively with the locality's governing body."
The Court finds this argument unpersuasive because the Supreme Court of Virginia has already rejected a similar argument in R.G. Moore Bldg. Corp. v. Comm. for the Repeal of Ordinance R(C)-88-13, 239 Va. 484, 488 (1990). In R. G. Moore, There, just as the City argues in this case, the landowner argued that "[d]uly enacted zoning regulations cannot be amended by a referendum process which lacks explicit zoning procedures." Id. at 488.
The Supreme Court of Virginia rejected this argument and explained that referendum provisions do not involve an improper delegation of legislative power to the electorate. Id. at 489. "Rather, there is a valid reservation by the people of the traditional right of referendum." Id at 489. Moreover, the Court found "there [is] nothing 'fundamentally unfair' in the referendum process to landowners [and] relief by variance is potentially available if hardship results when a property owner's land use changes are rejected by the voters." Id. at 493 .
The City further argues that the referendum process undermines the notice procedures in Title 15.2 of the Code of Virginia applicable to zoning and thus violates due process. Interestingly, the landowner in R.G. Moore made, essentially, the same argument when he claimed that it was "'fundamentally unfair' for it to be required to 'weather the myriad procedural rules and hearings set out in the zoning code and then face the misinformed electorate without an opportunity to present its case.'" R.G. Moore Building Corp., 239 Va. at 493.
In R. G. Moore the court rejected this argument ruling "'[a]s a basic instrument of democratic government, the referendum process does not, in itself, violate the Due Process Clause . . . when applied to a zoning ordinance." Id. at 493 (quoting City of Eastlake v. Forest City Enterprises, Inc. 426 U.S. 668, 679 (1976)). The Court reasoned that "there was nothing 'fundamentally unfair' in the referendum process to landowners, relief by variance is potentially available if hardship results when a property owner's land use changes are rejected by the voters." Id. at 493 (citing City of Eastlake, 426 U.S. at 679 n.13).
Next, the City argues that R.G. Moore specifically prohibits the Petitioners right to a referendum. In R.G. Moore, a landowner sought to rezone his land in Chesapeake from agricultural to single family residential. Id at 486. The Chesapeake City Council approved the petition and rezoned the land. Id. at 486. Following the approval, a group of concerned citizens mounted a petition drive to return the property to its former zoning status pursuant to § 3.07 of the Chesapeake City Charter. Id at 486. § 3.07 provided in relevant part:
Id. at 490. The Court explained:
The operation of the charter provision likewise is clear and unequivocal. The referendum held pursuant to § 3.07 technically does not "repeal" an ordinance; the ordinance never becomes effective. The referendum only serves to ratify or reject action taken by elected representatives which has not yet become effective. The original zoning on the landowner's property remains in place; the landowner is merely prevented from obtaining a new use for the land in a different zoning classification. The referendum provisions can never be used to rezone property, so the anticipated danger of "piecemeal" alterations to the City's comprehensive plan does not exist.
The City argues that "[a] careful reading of the R.G. Moore opinion leads one to conclude that, had the [R.G. Moore] rezoning already been in effect, the referendum likely would not have been allowed to go to election." The City highlights the language employed by the court when it...
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