In re Zoning Ordinance Amendments Enacted By the Bd. of Supervisors of Loudoun Cnty.

• Decision Date: 30 March 2004
• Docket Number: Chancery No. 03ZOA000-00 (Consolidated)
• Parties: In Re: Zoning Ordinance Amendments Enacted by the Board of Supervisors of Loudoun County, on January 6, 2003 (Consolidated Cases)
• Court: Circuit Court of Virginia

In Re: Zoning Ordinance Amendments Enacted by the Board of Supervisors of Loudoun County, on January 6, 2003 (Consolidated Cases)

Chancery No. 03ZOA000-00 (Consolidated)

Circuit Court of Loudoun County

March 30, 2004

John H. Foote, Esquire

7324 West Street, Suite 300

Manassas, Virginia 20110

Francis A. McDermott, Esquire

1751 Pinnacle Drive, Suite 1700

McLean, Virginia 22102

Grayson P. Hanes, Esquire

44084 Riverside Parkway, Suite 300

Leesburg, Virginia 20176

Randall T. Greehan, Esquire

Jeffrey A. Huber, Esquire

T. David Stoner, Esquire

Scott D. Helsel, Esquire

1925 Isaac Newton Square, Suite 250

Reston, Virginia 20190

John R. Roberts, Esquire

Loudoun County Attorney

One Harrison Street, S.E., Fifth Floor

Leesburg, Virginia 20177-7000

Dear Counsel:

The pretrial pleadings presently before the Court emphasize, among other things, the importance of notice when a local governing body exercises its power to legislate. Complainants ask the Court to exercise its right of judicial review and declare invalid the action of the Board of Supervisors (Board) in adopting sweeping changes to the County Zoning Ordinance because it failed to give statutorily required notice. The Commonwealth adheres to the "Dillon Rule" where local governing bodies may exercise only those powers specifically granted by the Legislature and those fairly or necessarily implied from those expressly granted, and those powers that are essential and indispensable. Arlington County v. White, 259 Va. 708 (2000). Thus, a failure of a local governing body to give notice as required by the General Assembly will render the legislative actions of a local governing body, such as the Board of Supervisors, void and of no legal efficacy.

Judicial review is not a new concept but traces its origins to the very early days of the Republic. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Martin v. Hunter's Lessee, 14 U.S. (1 Wheaton) 304 (1816). Modern zoning practices in the Commonwealth have been the subject of judicial scrutiny since the early days of the twentieth century. See, e.g., Gorieb v. Fox, 145 Va. 554 (1926), aff'd, 274 U.S. 603 (1927); West Brothers Brick Co. v. City of Alexandria, 169 Va. 271 (1937). While courts are cautioned to tread lightly when faced with the exercise of police powers by a legislative body, they are required to nullify enactments made without authority or that are unreasonable or arbitrary.

When the Board advertised and considered the instant amendments, the case of Glazebrook v. Board of Supervisors of Spotsylvania County, 266 Va. 550 (2003), had not been decided by the Supreme Court of Virginia. Only after the consolidation of the proceedings and the filing of a Master Supplemental Bill of Complaint (MSOBC) by the Litigation Steering Committee (LSC) did that decision become the centerpiece certain of the procedural arguments in this case.

Over the objection of the Board, the Complainants were permitted to file a First Amended Master Supplemental Bill of Complaint. The Court found such amendment was consistent with the provisions of the Multiple Claims Act, , and the rule that amendments to pleadings should be liberally granted. Va. Code Ann. §8.01-267.1; Va. Sup. Ct. R. 1:8. That amended pleading forms the basis of the instant pretrial dispositive motions.

In this consolidated proceeding, the Complainants mount a challenge to Zoning Ordinance Amendments (ZOA) enacted by the Board on January 6, 2003. By decree of this Court entered on June 6, 2003, the Court ordered the limited consolidation of a number of individual challenges to these zoning amendments. As a result of this consolidation, the LSC was established by that Decree of Consolidation and has filed a First Amended Master Supplemental Bill of Complaint for Declaratory Judgment, Injunctive and other Relief Regarding Specified Common Issues. In response, the Board has filed both demurrers and pleas in bar that the LSC asks be stricken. In addition, the Board has filed demurrers and pleas in bar to claims raised in what it contends are more than six individual cases subject to consolidation.

On Friday, February 20, 2004, counsel for the parties appeared before the Court for the purpose of presenting oral argument on these potentially dispositive pretrial issues. Prior to their appearance, they had submitted lengthy memoranda in support of their respective positions. The Court has considered the pleadings, papers filed, and arguments made. After an exhaustive review of the ordinance and applicable law, the Court makes the following findings as to these issues.

¦Stipulation of the Parties

The parties have entered into the following Stipulation:

A. None of the Parties will present testimony at the February 20, 2004, hearing.

Instead, the record will consist of the pleadings and certain documentary evidence, to the extent permitted by the Court, and other basic facts (e.g. zoning and overlay status of various Complainants' property) that are the subject of the following stipulations and statements.

B. For the purpose of the hearing on February 20, 2004, the Parties stipulate as to

the authenticity of the exhibits attached to their respective briefs on the matters before the Court that day, but not as to (1) any hand-written marginalia thereon or, (2) parts of the documents that may not have been attached.

C. Stipulations by a party as to the authenticity of a document does not mean that

such party stipulates as to its admissibility, except that the Parties do stipulate as to the authenticity and admissibility of the Board's newspaper advertisements for the public hearings on the ZOAs [Zoning Ordinance Amendments] and the LSC [Litigation Steering Committee] agrees that the Court may consider these documents (as if they were attached as exhibits to the Amended MSBOC) when ruling on the Board's demurrers and pleas in bar.

D. The Parties will stipulate as to whether named Complainants are zoned to

districts or overlays for the purpose of the AR-1/AR-2 [Agricultural Rural Zoning Districts] and overlay standing challenges.

E. The Parties agree (and will stipulate, if need be) that the Court can by judicial

notice consider provisions of the prior Zoning Ordinance as well as the provisions of the Zoning Ordinance after the adoption of the ZOAs.

F. The Parties agree that the Demurrer and Plea in Bar to the 42 U.S.C. § 1983,

Claims rise or fall on the outcome of the Demurrer and Plea in Bar to the Equal Protection Claims.

G. The LSC states that any references to the JLMA-1 [Joint Land Management Area Zoning District] district in the AMSBOC [Amended Master Supplemental Bill of Complaint] are typographical errors and are withdrawn as no Complainants are challenging the JLMA districts.

H. The LSC states that no Complainants are raising claims alleging violations of

Substantive Due Process rights and to the extent that any such claims are stated in the pleadings, or may be inferred from statements in the pleadings, they are hereby dismissed without prejudice. However, in doing so, the LSC does not waive any "substantive rights" arguments that the Complainants may make (or may have already made) in connection with Count X, vested rights claims, or similar issues.

I. While the Parties agree that the Respondents' demurrers and pleas in bar were

filed first, and thus the Respondents believe they should argue first, if the Court wishes to hear argument in some other order, the Parties would ask that the Court let counsel know.

¦History of the Zoning Amendments

On January 5, 2000, the Board, finding that "…the public necessity convenience, general welfare and good zoning practice…" so required, passed a resolution directing a review of the Comprehensive Plan by the Planning Commission and the initiation by the Board of a comprehensive review and amendment of the Loudoun County Zoning Ordinance and Map. At a meeting held on July 15, 2002, the Board, having adopted the Revised General Plan and Countywide Transportation Plan the previous year, directed that the Planning Commission conduct a review of the proposed remapping and amended Zoning Ordinance text language prepared by staff and a private consulting firm. The Commission was charged to report its findings and recommendations to the Board no later than October 15, 2002.

Upon completion of the review by the Planning Commission, the Board caused a notice of a public hearing concerning the proposed amendments to the Zoning Ordinance text and Map to be published once a week for two consecutive weeks in a newspaper of general circulation in Loudoun County. Pursuant to that notice, hearings were held on the amendments on November 2, 2002, and November 6, 2002. At the January 6, 2003, meeting of the Board, an ordinance was passed adopting amendments to the Zoning Ordinance and Map to be effective at 12:01 A.M., January 7, 2003.

¦Judicial Review of the Zoning Amendments

Within the thirty days following the enactment of the "new" Loudoun County Zoning Ordinance and Map, numerous lawsuits were filed challenging the actions of the Board. The allegedly aggrieved property owners suggest that the Court should nullify the effect of the amendments. In addition, it is suggested by some of the Complainants that the actions of the Board violated their rights to the equal protection of the laws for which they are entitled to relief under federal law. Both procedural and substantive claims have been addressed. While a variety of pretrial dispositive issues are before the Court for adjudication and are ripe for resolution at this time, the issue of whether the Board exceeded its authority and was unreasonable in its actions as to individual properties is not. The Court has previously ruled upon certain common vested rights issues.^[1] Those rulings are not before the Court at this time.

¦Issues Presently before the Court

1. The Complainants assert that the ZOA are void in that the Board failed to include in either its initiating resolution of January 2000, or its subsequent

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