Cupp v. Board of Supr's of Fairfax County

• Decision Date: 15 June 1984
• Docket Number: 811632,Nos. 811574,s. 811574
• Citation: 318 S.E.2d 407,227 Va. 580
• Parties: Blair W. CUPP, et al. v. The BOARD OF SUPERVISORS OF FAIRFAX COUNTY. The BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Blair W. CUPP, et al. Record
• Court: Virginia Supreme Court

Page 407

318 S.E.2d 407

227 Va. 580

Blair W. CUPP, et al. v. The BOARD OF SUPERVISORS OF FAIRFAX COUNTY.

The BOARD OF SUPERVISORS OF FAIRFAX COUNTY v. Blair W. CUPP, et al.

Record Nos. 811574, 811632.

Supreme Court of Virginia.

June 15, 1984.

J. Richard Tremaine, Asst. County Atty. (David T. Stitt, County Atty., George A. Symanski, Jr., Sr. Asst. County Atty., on brief), for appellant in Record No. 811632 and appellee in Record No. 811574.

Thomas O. Lawson, Fairfax (W. Brewster Cockrell; Kelly, Louk, Lawson & Shumate, Fairfax, on brief), for appellees in Record No. 811632 and appellants in Record No. 811574.

Present: All the Justices.

THOMAS, Justice.

These appeals of a zoning dispute raise questions of the proper use of a declaratory judgment proceeding, the power of a locality to require the dedication of land and the construction of a roadway as preconditions to the grant of a special exception under a zoning ordinance, and the constitutionality of an ordinance designed to control plant nurseries located in residential areas. The two appeals arise from the same facts, are inextricably interwoven, and are combined for purposes of this opinion.

The issues can be better understood after a recitation of the facts. Blair W. Cupp and his wife Dorothy S. Cupp owned and operated Wolf Trap Nursery, a 6.72-acre property located on Route 7 in Fairfax County. The Cupps sold plants and plant accessories, and engaged in offsite landscaping work. When the nursery went into operation in 1972, the Cupp property was zoned RE-1. As such, the nursery was a use permitted of right.

In August 1978, the Board of Supervisors of Fairfax County (the "Board") adopted an ordinance which provided that a plant nursery, such as Wolf Trap Nursery, was no longer a use permitted of right, but was instead a "Category 5 special exception use" in an R-1 district. However, this change did not immediately affect the Cupps because their business was designated a "grandfathered use." As such, the Cupps were permitted to continue to operate their business as they had always operated it in the past. Only if they replaced or enlarged any building in which the business was conducted could they be required to conform to the requirements of the new ordinance. See Fairfax County Code § 15-101(2).

On September 17, 1979, pursuant to a plan to modify the physical layout of their nursery, the Cupps filed an application for a special exception. On October 22, 1979, the Board adopted an amendment to the county zoning laws to draw a distinction between a "Plant Nursery" and a "Garden Center." A "Plant Nursery" was defined as follows:

An area or establishment for the propagation, cultivation and growing of nursery stock such as trees, plants, shrubs and vines. Retail sales from the site may be permitted as an accessory use and shall be limited to nursery stock grown on the property and items designed solely to maintain and preserve the life and health of nursery stock such as fungicides, insecticides, chemicals, peat moss, humus, mulches and fertilizers. Retail sales of items not designed solely to maintain and preserve the life and health of nursery stock such as garden tools, hoses, pottery, statues and bird baths shall be deemed a GARDEN CENTER and shall be prohibited. Landscape contracting of nursery stock grown on the property shall be permitted as an accessory use.

If the Cupps relinquished their grandfathered status, this definition would require that they stop selling certain accessories such as sprayers, hand tools, and plastic pots which they had sold since the inception of the business.

In a report dated December 5, 1979, the staff of the Fairfax County Planning Commission (the "Staff") recommended that the Cupps' application be approved subject to certain conditions including the following:

5. Construction of a deceleration/right turn lane for entrance to the plant nursery; and

6. dedication of right-of-way to 100 feet from the centerline for a third eastbound lane and a standard service drive, the exact amount of dedication to be set by DEM at the time of site plan review. Construction of the third lane and the service drive can be deferred until such time as the site redevelops.

In addition to the two conditions relating to road improvements, the Staff recommended that the approval of the application "not relieve the applicant from compliance with the provisions of any applicable ordinances regulations or adopted standards."

The day after the Staff made its report, December 6, 1979, the Cupps' counsel wrote the County Planning office stating, "I would like the record to reflect that the applicants object to the requirements of the dedication of a right-of-way up to 100 feet from the centerline of Route 7 and the construction of a deceleration right turn lane at the entrance." The County wrote back on January 4, 1980, confirming that the road dedication and construction requirements would be imposed and advising that unless the Cupps immediately came into compliance with the October 22, 1979 amendment by refraining from the sale of plant accessories, the Staff would recommend that the application be denied. The Cupps responded, by counsel, in a letter dated January 10, 1980. Therein, they took issue with the County's position that the Cupps were required to stop selling plant accessories:

[I]t is my client's position that even if the SE is approved, his business will continue as a grandfathered, nonconforming use and the new ordinance would not be applicable to him. All Mr. Cupp seeks to do is rearrange his facilities in a more efficient manner with a diminuous [sic] amount of expansion and to continue doing what he has been doing for the last seven years. He is not seeking to expand his operation in terms of the activities that are conducted thereon.

Additionally, in that same letter, the Cupps reiterated their objection to the land dedication and road construction requirements. In support of their position they cited Hylton v. Prince William County, 220 Va. 435, 258 S.E.2d 577 (1979).

The County wrote a reply on January 23, 1980. In it the County retreated from its position that the Cupps would have to conform to the plant nursery definition prior to the approval of their application. The County's new position was "that if the special exception is approved it must come into compliance with the current Zoning Ordinance definition and regulations for plant nurseries." The County disputed the Cupps' contention that if the application were approved, Wolf Trap Nursery would continue its grandfathered status. The County said that position was in error. Finally, the County said it would not change its position "regarding improvements to Route 7." The Cupps wrote back, by counsel, in a letter dated January 29, 1980. In that letter they objected to the staff's interpretation of the ordinance for the conditions that would attach to the special exception result in an unwarranted confiscation of a portion of Mr. Cupp's business and, therefore, would be illegal and void. Obviously these conditions would seriously damage his business and he would be foolish to accept the special exception under these circumstances.

The Cupps again noted their objection to the required dedication and road improvements, calling them "unreasonable, illegal and not related to the public health, safety and welfare." They stated that the road requirements were particularly unfair because the modifications to the business were so minor "that they will not measurably impact the public welfare or safety, particularly traffic on Route 7." Finally, the Cupps reiterated their position that they had a "vested right" to continue their business without securing a special exception. The County did not reply to this letter.

Thereafter, Blair Cupp sent a letter to the County which he had personally prepared. In his February 4, 1980 letter, Mr. Cupp complained that the ordinance which defined plant nurseries was unrelated to the public health, safety, and welfare. He strongly objected to the application's being conditioned upon the dedication of land and the construction of a roadway. He said that if the County wanted the land, it should pay for it. He asked why he should have to pay for a road that is generally needed by the public but not specifically required because of his business. He pointed out that while 34,956 vehicles used Route 7 each day, he averaged only 25 customers per day. He stated that there had been no accidents at the entrance to his property for as long as he had been in business. There was no response to this letter.

The Cupps' application was considered by the Board on March 10, 1980. Their counsel advised the Board that a number of conversations had been had with the Staff "in attempting to work out some sort of an amendment that my client could live with." He stated that these efforts had been unavailing. He recounted his clients' position that their business predated the new ordinance and that they were "not able to live with the Staff's interpretation as to the effect of that ... ordinance on this SE." He then asked the Board to deny the application: "[w]e would ask the Board to turn down this application ... which may sound a bit unusual to you but we are not able to economically, it's not feasible for us to live with it ...."

The Staff testified that the application should be approved subject to the conditions set forth in its December 5, 1979 report which included the requirement that land be dedicated and a roadway built. Questions were asked by certain of the Board's members concerning the Cupps' request that their application be denied. The Cupps' counsel made clear that his clients were not withdrawing their application but wanted it voted "up or down." He explained that the position he took was because of the Staff's conditions and interpretations. He stated: "In view of the interpretation of the Staff--that the Staff is giving to...