Covel v. Town Of Vienna
| Decision Date | 14 March 2009 |
| Docket Number | NO.CL-2006-7105,NO.CH-2003-184618,NO. CH-2003-186629,CH-2003-186629,CH-2003-184618,CL-2006-7105 |
| Parties | Covel v. Town of Vienna and PMY Associates v. Town of Vienna |
| Court | Circuit Court of Virginia |
JUDGES
MICHAEL P. McWEENY
MARCUS D. WILLIAMS
STANLEY P. KLEIN
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
GAYLORD L. FINCH, JR.
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRODIE
RETIRED JUDGES
BURCH MILLSAP
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKORT
RICHARD J. JAMBORSKY
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
Debra Fitzgerald-O'Connell, Esquire
Debra Fitzgerald-O'Connell, P.L.C.
John D. McGavin, Esquire
Amy A. Lombardo, Esquire
Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C.
Steven D. Briglia, Esquire
Town Attorney
Dear Counsel:
These consolidated cases are before the Court based upon determinations made by the Vienna Town Council ("the Town") concerning properties in Vienna owned by Petitioners Michael Covel ("Covel"), Jerome and Johanna Covel ("Dr. and Mrs. Covel"), Matthew and Susan Stich ("Stich"), and PMY, Associates ("PMY") (collectively "Petitioners"). Petitioners claim, inter alia, that the Windover Heights Historic District ("WHHD"), where all of the subject properties are located, was established in a manner inconsistent with statutory and constitutional law and that the decisions of the Town at issue herein were made arbitrarily and capriciously. The Town responds that the Historic District was properly created and that all relevant decisions of the Town were made after appropriate consideration of the matters brought to light during full and fair public hearings. The Court has fully considered the pleadings of the parties, the evidence presented during a three day trial, the pre and post-trial briefs of the parties and the governing authorities. For the reasons set forth herein, the Court dismisses all three of these cases with prejudice.
In February 1975, pursuant to the authority granted to local governments to create historic districts, the Vienna Town Council adopted Article 26, §§18-258 et. seq. of the Town Code entitled "Historic Districts." Town Code §18-258 set out the following intent of the Town in adopting this ordinance:
Intent. For the purpose of promoting the general welfare, education and recreational pleasure of the public, through the perpetuation of those geographical areas or parcels of land or individual structures and premises which have been officially designated by the Town Council as having historic or architectural significance, historic districts are created. Regulations within such districts are intended to protect against destruction of or encroachment upon such areas, structures, and premises; to encourage uses which will lead to their continuance, conservation and improvement in a manner appropriate to the preservation of the cultural, social, economic, political, architectural, or archeological heritage of the Town; to prevent creation of environmental influences adverse to such purposes; and to assure that new structures and uses within each such district will be in keeping with the existing character of the district to be so preserved and enhanced by this Article.
Vienna Town Code §18-258 (emphasis added).
Thereafter, in April 1979, the Town adopted Town Code §§18-280.1 et. seq. establishing the Windover Heights Historic District. Vienna Town Code § 18-280.1 set forth the following purpose for the establishment of this overlay district:
Purpose. The purpose of this ordinance is to recognize and designate by an overlay to the Zoning Map of the Town of Vienna the Windover Heights Historic District of the Town, which District contains buildings and places in which historic events occurred and which have special public value because of notable architectural features and other features which relate to the cultural and artistic heritage of Vienna, and to provide for the preservation of that District and sites therein; the Town Council recognizing that the District is a single family residential neighborhood which has changed little since the turn of the century, which consists mostly of older homes, open spaces and meandering streets lined with mature trees and shrubs which constitutes one of the original residentialsections of historic old Vienna and which housed citizens who were prominent in the development of the Town of Vienna.
Vienna Town Code §18-280.1 (emphasis added). The boundaries of the WHHD were delineated in Town Code §18-280.2. The entirety of this Historic District was located within the confines of what constituted the Salsbury Farm in the 1800's.
In Town Code §18-280.4 (A), the Town established that subject to certain exceptions set out in subsection (B) of that section, a party seeking to erect a building, structure, fence or sign within the District would first have to obtain a Certificate of Appropriateness ("COA"). The procedure for obtaining a COA was set out in Town Code § 18-280.7. Subsection (A) of that provision mandated that a party seeking a COA commence the process by filing an application for the COA with the Town's Zoning Administrator. The Zoning Administrator would then forward the application with recommendations concerning the application to the Windover Heights Board of Review, created pursuant to Town Code § 18-280.5.
In exercising its consideration of all such applications. Town Code §18-280.8 (A) mandated that the Board of Review, or the Town Council on appeal, consider certain delineated aspects of the structure (including fences) to be erected.
In the event the Board denied an application for a COA, the applicant could appeal the denial and, upon written request, receive a full hearing at a public meeting before the Vienna Town Council. Town Code § 18-280.10. In addition, any person aggrieved by an adverse decision by the Town Council could further appeal that decision to the Circuit Court of Fairfax County which could either: (1) reverse or modify the decision of the Town Council if it found the Council's decision to be arbitrary and an abuse of discretion, or (2) affirm the Town Council's decision. Town Code § 18-280.11.
Each of the six properties involved in these suits lies within the confines of the WHHD and has been part of this historic district since its adoption in 1979.
1. 130 Pleasant Street, N.W. ("130 Pleasant")
This property was purchased by Michael Covel on October 30, 2002. Its southeastern property line serves as one of the borders of the WHHD and it lies adjacent to an office building within the 301 Maple Avenue West Complex. It is zoned RS-16 and the parcel has remained unchanged in size and shape since the late 19th Century. During all relevant times, a single-family residence was located on the property. On two occasions, prior owners of 130 Pleasant had applications for COAs granted by the Town.1
On January 10, 2003, approximately two and one half months after his purchase of 130 Pleasant, Covel submitted a request to the Town to have this property removed from the WHHD. Thereafter, while the request for removal was pending, Covel submitted an application for a COA to build a fence on this property and Covel's adjoining property at 346 Windover Avenue N.W. In his application for the COA, Covel responded "N/A" to virtually all of the Town's requested information.2 Along with his application, he also submitted a letter3 containing sixteen separate inquiries relating to the Town Code, the process of the Windover Heights Board of Review and the Town's Windover Heights COA application form. Covel appeared at the hearings concerning his COA application before both the Board of Review and later the Town Council. At both meetings, Covel declined to supplement the information set out in his COA application by providing the colors and finishes for his proposed fence. On April 1, 2003, Covel's application for a COA to build the fence was denied as incomplete by the Board of Review by unanimous vote."4 On appeal to the Town Council, the application was again denied by unanimous vote as incomplete.5 Covel's request for removal of this property from the WHHD was also denied by unanimous vote of the Town Council on September 26, 2003.6
2. 346 Windover Avenue, N.W. ("346 Windover")
This property was obtained by Covel on March 7, 2003. It adjoins Covel's 130 Pleasant property. It also backs up to a masonry wall and a variety of plants separating the residential lot from the C-1 zoned Maple Professional Park.7 At all relevant times, a single-family residence was located on this property. On two occasions, prior owners of 346 Windover had applications for COAs granted by the Town.
On March 7, 2003, the same day he obtained 346 Windover, Covel requested that it be removed from the WHHD. That request was denied on September 26, 2003 by unanimous vote of the Town Council.8
3. 224 Walnut Lane, N.W. ("224 Walnut")
This parcel was obtained by Dr. and Mrs. Covel in August 1975. It lies in the heart of the WHHD. A residence located on this property could have been built as early as 1869, but no later than 1910, as it is depicted in a 1910 photograph in the book, CP. Stuntz and M.S. Stuntz, This Was Vienna, Virginia: Facts and Photos (1987)("This Was Vienna"). The residence is apparently one of the oldest, if not the oldest residence in the WHHD.9 Applications for COAs submitted by Dr. and Mrs. Covel were approved by the Town on several occasions.10
On March 17, 2003, Dr. and Mrs. Covel submitted a request that 224 Walnut be removed from the WHHD, That request was denied by unanimous vote of the Town Council on September 26, 2003.11
4. 222 Lovers Lane, N.W. ("222 Lovers")
This property was purchased by Dr. and Mrs. Covel in October 1977. The parcel lies...
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