Concerned Taxpayers of Brunswick County v. County of Brunswick

• Decision Date: 03 March 1995
• Docket Number: No. 940494,940494
• Citation: 249 Va. 320,455 S.E.2d 712
• Parties: CONCERNED TAXPAYERS OF BRUNSWICK COUNTY, et al. v. COUNTY OF BRUNSWICK, et al. Record
• Court: Virginia Supreme Court

Page 712

455 S.E.2d 712

249 Va. 320

CONCERNED TAXPAYERS OF BRUNSWICK COUNTY, et al. v. COUNTY OF BRUNSWICK, et al.

Record No. 940494.

Supreme Court of Virginia.

March 3, 1995.

Brian L. Buniva, Richmond (Timothy M. Kaine, James R. Kibler, Jr., Mezzullo & McCandlish, on briefs), for appellants.

Timothy G. Hayes, Richmond (Heidi W. Abbott, Williams, Mullen, Christian & Dobbins, on brief), for appellee AEGIS Waste Solutions, Inc.

Robert M. Rolfe, Richmond (Anne Gordon Greever, R. Noel Clinard, Lori M. Elliott, James E. Cornwell, Hunton & Williams, on brief), for appellee Brunswick County.

Allan M. Heyward, Jr., Richmond (Sands, Anderson, Marks & Miller, on brief), for appellees J. Howard Settle, Leroy Lynch and James F. Pritchett.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and KEENAN, JJ., and POFF, Senior Justice.

KEENAN, Justice.

In this appeal, we decide whether the trial court properly sustained demurrers to two bills of complaint, which challenged certain actions of county officials in connection with the planned construction of a regional landfill. We consider each bill of complaint separately, and since both were dismissed on demurrer, we consider as true all the material facts alleged in the bills of complaint, all facts impliedly alleged, and all reasonable inferences that may be drawn from such facts. Krantz v. Air Line Pilots Ass'n, Int'l, 245 Va. 202, 204, 427 S.E.2d 326, 327 (1993).

The Zoning Case

In December 1992, Brunswick County (the County) issued a Request for Proposals (RFP) for construction and operation of a private landfill in the County. After various companies responded to the RFP, the County Board of Supervisors (the Board) began negotiations with AEGIS Waste Solutions, Inc. (AEGIS). The negotiations concerned construction and operation of a landfill that would accept, among other things, hazardous and medical wastes, although such materials specifically were prohibited by the RFP.

In June and July 1993, AEGIS purported to enter into contracts to purchase several tracts of land for use as the landfill site. Thereafter, AEGIS applied to the County for a conditional use permit (CUP) for the operation of a sanitary landfill that would accept various types of wastes and conduct recycling operations. After a public hearing on August 10, 1993, the County's Planning Commission voted to disapprove the CUP application, finding that the proposed landfill was not in accord with the County's comprehensive plan. In addition, the Planning Commission cited several other reasons for disapproving the CUP application, including environmental concerns, possible flooding of the site, and concerns regarding the proposed acceptance of medical and special wastes.

The Board later held a public hearing on AEGIS' request for the CUP. At first, the Board members voted to deny the application. They then tabled the matter for further consideration at their next meeting although, in doing so, they failed to follow the Board's rules of procedure.

On September 15, 1993, by a 3 to 2 vote, the Board voted to grant AEGIS' application. This vote took place after the Board had delegated to special counsel the authority to draft conditions to be imposed on the CUP, but before the Board had reviewed those conditions.

On October 15, 1993, a bill of complaint for declaratory and injunctive relief was filed against the County, the Board, AEGIS, and several County employees in their official capacities. Plaintiffs were Concerned Taxpayers of Brunswick County, an association of local property owners and taxpayers, and several individual property owners (collectively, Concerned Taxpayers).

The trial court sustained demurrers to each of the five counts of the bill of complaint on the grounds that the Board's actions were entitled to a strong presumption of validity, and that the facts alleged were insufficient to show that the Board engaged in arbitrary and capricious conduct in granting the CUP. Concerned Taxpayers contend that, in ruling on the demurrers, the trial court erroneously applied a presumption that the zoning action was reasonable, without allowing them to present evidence to show that the action was unreasonable.

Initially, we note that Concerned Taxpayers have failed to advance any reasons why the trial court erred in sustaining demurrers to allegations of the bill of complaint contained in Count IV and in portions of Count II. Thus, we hold that the following issues have been abandoned: (1) whether the Board's initial vote to deny the CUP became final as a result of its failure to table the matter properly for reconsideration; and (2) whether the Board unlawfully delegated its legislative powers, and otherwise acted arbitrarily and capriciously, in authorizing its special counsel to prepare conditions governing issuance of the CUP. See Rule 5:27; J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208, 372 S.E.2d 391, 392-93 (1988); Chesapeake & Potomac Tel. Co. of Va. v. Sisson & Ryan, Inc., 234 Va. 492, 507, 362 S.E.2d 723, 731 (1987).

In Count I of their bill of complaint, Concerned Taxpayers allege that AEGIS' application for the CUP was deficient. They state that, since AEGIS did not have an enforceable contract to purchase a parcel of land intended to become a part of the landfill site, AEGIS did not have a sufficient legal interest in the land to apply for the CUP. Therefore, Concerned Taxpayers allege, any actions taken on the CUP application by the Planning Commission or the Board were void.

Attached to the bill of complaint was a copy of a "Contract for Purchase of Unimproved Property," signed by AEGIS as purchaser and members of a family named Bassette as sellers. This document contained the following provision: "DEFAULT: If either Seller or Purchaser defaults under this Contract, this Contract becomes null and void." Based on this provision, Concerned Taxpayers allege that the purported contract of purchase "is a legal nullity, lacking in mutuality, and is otherwise not enforceable as a matter of law."

The Board had power to issue the CUP only in the manner required by law. In Section 11-3-1 of its zoning ordinance, the County requires that an applicant for a conditional use permit "shall be an owner of record or contract purchaser with written approval of owner, of the land involved."

In Count I and the attached exhibit, Concerned Taxpayers state that AEGIS was neither owner of record nor a contract purchaser of the Bassette parcel, since its contract with the Bassettes was unenforceable, so that AEGIS did not meet the prerequisite for submission of an application as required by the zoning ordinance. We conclude that these allegations are sufficient to state a cause of action for noncompliance with the County's zoning ordinance and, thus, that the trial court erred in dismissing Count I of the bill of complaint.

In Count II, Concerned Taxpayers allege that the Board failed to comply with the County's zoning ordinance and with Code §§ 15.1-446.1 and 15.1-456. ¹ They state that, since the proposed landfill and its recycling center were not shown on the County's comprehensive plan, the Board could not overrule the action of the Planning Commission and authorize the CUP unless the Board made specific written findings regarding the proposed CUP's accord with the comprehensive plan, pursuant to Code § 15.1-456 and Section 11-3 of the zoning ordinance. Concerned Taxpayers allege that the Board did not make these required written findings, and that the Board lacked jurisdiction to consider the CUP, because AEGIS failed to appeal the Planning Commission's decision to the Board.

We conclude that the trial court correctly sustained demurrers to the allegations of Count II. "[W]hile a demurrer admits as true all averments of material facts which are sufficiently pleaded, it does not admit the correctness of the conclusions of law stated by the pleader." Arlington Yellow Cab Co. v. Transportation, Inc., 207 Va. 313, 318-19, 149 S.E.2d 877, 881 (1966). The trial court properly held that the facts pleaded, if true, did not support a conclusion of law that the Board acted arbitrarily, unreasonably, or unlawfully.

Code § 15.1-456(B) permits a governing body to overrule the action of the local commission. That section does not limit the governing body's authority to overrule the action of the local commission to instances when an appeal is filed by the owners or their agents. Rather, the governing body may overrule the commission on its own motion by a majority vote. In addition, neither Section 11-3 of the zoning ordinance nor Code § 15.1-456 requires the governing body to make specific written findings when it grants a CUP for a use that is not shown on the comprehensive plan. Thus, the Board's actions, as recited in Count II, do not constitute a violation of Code § 15.1-456 or the zoning ordinance.

In Count III, Concerned Taxpayers allege that the Board's action in granting the CUP was arbitrary, capricious, and unreasonable, because the Board acted with disregard of the environmental consequences of the landfill, despite the requirements in Code §§ 15.1-489 and 15.1-490 and in the comprehensive plan that zoning actions protect the environment and conserve natural resources. Concerned Taxpayers allege that the landfill will be located near the existing, County-owned landfill, and that groundwater has been contaminated by the County's landfill. They further allege that AEGIS did not conduct geotechnical studies to support the location of the proposed landfill.

In sustaining the demurrer to Count III, the trial court referred only to the strong presumption of authority that is accorded to legislative action. Thus, the trial court effectively held that the County's zoning action is not subject to judicial review. We conclude that the trial court erred in reaching this result.

It is well established that a local governing body's decision to grant or to deny a...