JEFFERSON GREEN UNIT OWNERS v. Gwinn, Record No. 002574.

• Decision Date: 14 September 2001
• Docket Number: Record No. 002574.
• Citation: 262 Va. 449,551 S.E.2d 339
• Court: Virginia Supreme Court
• Parties: JEFFERSON GREEN UNIT OWNERS ASSOCIATION, INC., v. Jane W. GWINN, Fairfax County Zoning Administrator, et al.

551 S.E.2d 339

262 Va. 449

JEFFERSON GREEN UNIT OWNERS ASSOCIATION, INC., v. Jane W. GWINN, Fairfax County Zoning Administrator, et al.

Record No. 002574.

Supreme Court of Virginia.

September 14, 2001.

Mark P. Freidlander, Jr. (Barbara Beach; Friedlander & Friedlander; Beach & Associates, on briefs), McLean, for appellant.

Cynthia A. Bailey, Assistant County Attorney (David P. Bobzien, County Attorney; J. Patrick Taves, Deputy County; Jan L. Brodie, Senior Assistant County Attorney, on brief), for appellees.

Present: All the Justices.

KINSER, Justice.

This appeal involves the question whether a zoning proffer that provides recreational facilities by requiring payment of membership dues in a private recreational association violates the constitutional provision prohibiting special legislation and infringes upon "freedom of association." Although we conclude that the circuit court erred in finding the proffer unconstitutional, we will affirm the court's judgment requiring a condominium unit owners association to re-establish its membership in the recreational facility and to pay membership dues. We also conclude that the circuit court correctly determined that the proffer does not violate the limitation in Code § 15.2-2297(A)(v).

I. FACTS AND MATERIAL PROCEEDINGS

Jefferson Green Unit Owners Association, Inc. (Jefferson Green), is a condominium unit owners association whose membership is comprised of the owners of condominiums in the complex known as Jefferson Green Condominium, which is located in Fairfax County. In 1976, the Fairfax County Board of Supervisors (the Board) approved a rezoning application for the parcel of land upon which the condominium complex is situated. The application included voluntary, written proffers by the owner of the property. The Board accepted those proffers pursuant to the authority granted in former Code § 15.1-491(a). Included in the proffers was a condition that "there will be provided, at the time of construction of the project, not less than the on-site recreational facilities shown on the Development Plan, including tot lot, multi-purpose court and swimming pool complex...."

In 1981, the developer, who had purchased the subject property in 1979, submitted a proffered condition amendment (PCA) seeking further changes in the development plan approved for the condominium complex. In pertinent part, Proffer No. 3 addressed the requirement of on-site recreational facilities:

In substitution for the on-site recreation facilities previously proffered the following will be provided:

a. Pursuant to agreement with the Bren Mar Park Recreation Association, rehabilitation of the facilities of that Association within 180 days of approval of this application.

b. Purchase of one membership in the Association for each dwelling unit in this development, and provision of these memberships at no charge to each individual unit and/or the condominium association associated therewith, in accordance with the Virginia Condominium Act, other than annual dues which shall be paid by the condominium unit Owner[s] Association.

c. Funds paid to Bren Mar Park Recreation Association shall be expended for the renovation and improvement of the swimming pool, bath house, tennis courts, and parking lot as determined by the Board of Directors of the Bren Mar Park Recreation Association ....

The Board subsequently approved the developer's PCA, including Proffer No. 3, pursuant to Code § 15.1-491(a).

In accordance with Proffer No. 3, the developer paid the initial membership charge for each condominium unit, and Jefferson Green paid the required annual dues to Bren Mar Park Recreation Association (Bren Mar) until 1999.¹ As a result of Jefferson Green's refusal to pay the 1999 dues, Jane W. Gwinn, Fairfax County Zoning Administrator (the Zoning Administrator), commenced a suit against Jefferson Green. In that suit, the Zoning Administrator sought a declaratory judgment that Jefferson Green was in violation of Proffer No. 3 and Fairfax Zoning Ordinance § 18-204(3).² She also asked the circuit court to enter an injunction requiring Jefferson Green to re-establish membership in Bren Mar and to remit all unpaid annual dues. Jefferson Green answered the suit and also filed a cross-bill, requesting the court to declare Proffer No. 3 void as a matter of public policy and in violation of Code §§ 15.2-2297 and -1102.

After considering the parties' memoranda and argument, the circuit court determined that Code § 15.2-2297 does not apply to Fairfax County and that, therefore, Proffer No. 3 does not violate subsection (A)(v) of that statutory provision. However, the court concluded that Proffer No. 3 is "private legislation" that "create[s] the type of economic favoritism strictly forbidden by the special-law prohibitions of the Virginia Constitution." The court also stated that Proffer No. 3 is tantamount to "forced association" and that a compelling governmental interest had not been established to justify the government's "dictat[ing] membership into a private organization." Nevertheless, the circuit court held that Proffer No. 3 "must be enforced because Jefferson Green requested and/or consented to [its] adoption" by virtue of its status as the successor-in-interest to the developer who had asked for the zoning amendment and submitted Proffer No. 3. The court concluded that the developer's consent is binding on Jefferson Green and waived any attack on the constitutionality of Proffer No. 3.

In an order incorporating its letter opinion, the circuit court found Jefferson Green in violation of Proffer No. 3. Accordingly, the court directed Jefferson Green to re-establish membership in Bren Mar, to pay and to continue to pay all membership dues owed to Bren Mar, and to refrain from any future violation of Proffer No. 3. The court also dismissed Jefferson Green's cross-bill with prejudice.

II. ANALYSIS

Jefferson Green assigned three errors to the circuit court's decision, and the Zoning Administrator filed two assignments of cross-error. We will address only Jefferson Green's assignment of error regarding the court's finding that Code § 15.2-2297 does not apply to Fairfax County and the Zoning Administrator's assignment of cross-error challenging the court's conclusion that Proffer No. 3 is unconstitutional.

A. CODE § 15.2-2297

When the property upon which Jefferson Green is situated was rezoned in 1976, Code § 15.1-491(a) allowed counties in which the urban county executive form of government was in effect to adopt, as part of an amendment to a zoning map, reasonable conditions that had been proffered in writing by the owner of the property which was the subject of the proposed zoning map amendment.³ In 1978, the General Assembly enacted Code § 15.1-491.2 as part of the 1978 Va. Acts ch. 320.⁴ That Code section provided that a zoning ordinance may include voluntary written proffers by the owner of the subject property as part of a rezoning or amendment to a zoning map, but subsection (v) of Code § 15.1-491.2 prohibited the acceptance of a proffer containing a condition that required "payment for or construction of off-site improvements." However, Clause 2 of the 1978 Va. Acts ch. 320 stated:

[T]he provisions of this act shall not be effective as to those counties, cities or towns specified in paragraph (a) of § 15.1-491[, which includes counties that have the urban county executive form of government,] unless and until adopted in whole or in part by amendment of the zoning ordinance. The provisions of this act are permissive and shall not be construed to limit or restrict the powers otherwise granted to any county, city or town, nor to affect the validity of any ordinance adopted by any such county, city or town which would be valid without regard to this act.

Since Proffer No. 3 provides for the expenditure of funds to renovate and improve the off-site recreational facilities located at Bren Mar, Jefferson Green claims that Proffer No. 3 violates the prohibition against payment for off-site improvements contained in § 15.2-2297(A)(v). The Zoning Administrator disagrees and asserts that the restrictions in § 15.2-2297(A) do not apply to Fairfax County. Instead, the Zoning Administrator contends that Fairfax County accepts proffers pursuant to Code § 15.2-2303, which does not include the limitation at issue. She further argues that Fairfax County has never adopted any of the provisions of Code § 15.2-2297 or its predecessor statute, Code § 15.1-491.2. We agree with the Zoning Administrator.

As the circuit court noted, it is not disputed that Fairfax County has adopted the urban county executive form of government. Pursuant to the terms of Clause 2 of the 1978 Va. Acts ch. 320, the provisions of that act, which included former Code § 15.1-491.2, were not "effective as to those counties ... [having that form of government] unless and until adopted in whole or in part by amendment of the zoning ordinance." Thus, the provisions of Code § 15.1-491.2 did not apply to Fairfax County unless it adopted them.

In contrast, Code § 15.2-2303(A), like its predecessor Code § 15.1-491(a), which was in effect when the Board accepted Proffer No. 3, specifically addresses the acceptance of proffers by counties that have adopted the urban county executive form of government. Unlike Code § 15.2-2297(A), § 15.2-2303(A) does not contain a prohibition against payment for off-site improvements. Neither did former Code § 15.1-491(a). Contrary to Jefferson Green's position, we do not find any conflict between the provisions of Code §§ 15.2-2297(A) and -2303(A), or between their respective predecessor statutes.

However, Jefferson Green argues that the provisions of Code § 15.2-2297(A) control Fairfax County's acceptance of proffers because the county adopted those provisions when it enacted Article 1, Part 2, § 1-200(15) of the Constitution of the Fairfax County Zoning Ordinance. That section states, in order "to promote the...