KSS One, LLC v. Henrico County
| Docket Number | Record No. 0294-22-2 |
| Decision Date | 07 March 2023 |
| Citation | 76 Va.App. 770,883 S.E.2d 700 |
| Parties | KSS ONE, LLC v. HENRICO COUNTY, Virginia, Board of Supervisors of Henrico County, R. Joseph Emerson, Jr., in His Capacity as the Director of Planning of Henrico County, Planning Commission of Henrico County, UVP Holdings LLC, and Highwoods Services, Inc. |
| Court | Virginia Court of Appeals |
S. Keith Barker (S. Keith Barker, P.C., on briefs), Richmond, for appellant.
Ryan Murphy, Deputy County Attorney; Michael J. Rothermel, Richmond (Andrew Newby, County Attorney; Edward E. Bagnell, Jr. ; Courtney M. Paulk ; Elizabeth C. Burneson ; Office of the Henrico County Attorney; Spotts Fain PC; Hirschler Fleischer, PC, on brief), for appellees.
Present: Judges Chaney, Raphael and Callins
OPINION BY JUDGE STUART A. RAPHAEL
Appellant KSS One, LLC brought this lawsuit to block the construction of a child-daycare center in a Henrico County office park where KSS owns a condominium unit. KSS claims that Henrico County's approval of the plan of development for the daycare center violated KSS's procedural-due-process rights because the decision was made by the director of the Henrico County Planning Commission as the designee of the Board of Supervisors; KSS argues that it was unconstitutional for the planning director to both advocate adopting the plan of development and then approve it as the final decisionmaker. KSS also argues that the approval of the plan of development changed the zoning of the property, impairing KSS's vested rights. Finding neither claim meritorious, we affirm.
Because we are reviewing the trial court's order sustaining the defendants’ demurrers, we take the facts alleged in the amended complaint in the light most favorable to the plaintiff. Patterson v. City of Danville , ––– Va. ––––, ––––, 875 S.E.2d 65 (2022). We do not, however, accept the pleader's conclusions of law, even if those conclusions are couched as factual assertions. Id.
In 1999, the Board of Supervisors of Henrico County approved "Conditional Rezoning Case C-27C-99" for a tract of land that included the property at issue. The rezoning imposed various conditions, including the submission and approval of a plan of development. The conditional rezoning classified the property as O-3C Office District. That zoning classification permitted the operation of a daycare center as long as it was approved through a plan of development. See Henrico Cnty. Code § 24.50(g) (2014) (); id. § 24-50.11(a) (2014) (); id. § 24-106 (2014) (). The Board of Supervisors later revised and renumbered the zoning ordinance, effective September 1, 2021. See Henrico Cnty. Zoning Ordinance (2022), https://henrico.us/pdfs/planning/code-update/Ch24_2022-12-13.pdf.1
In 2004, PAPEC Richmond II, LLC applied for a plan of development for a 6.28-acre office condominium within the area subject to the 1999 rezoning. KSS alleges that the county's planning department reviewed the application and required certain changes. The Planning Commission then approved the plan and recommended it to the Board of Supervisors, which also approved it. The approved plan of development provided for eight buildings, together with common areas that included parking, lighting, and open space. PAPEC's approved plan of development did not mention the operation of a daycare facility.
PAPEC formed the Dominion Place Condominium Unit Owners Association, Inc. (Condo Association) to represent the interests of the condominium owners in the building units and common elements. By June 2007, the shells for two of the eight buildings had been completed.
Also in 2007, "[i]n reliance on the O-3C zoning," KSS purchased one of the condominium units from PAPEC. The amended complaint alleges that the purchase entitled KSS to "a proportional undivided interest in all Common Elements in existence at that time, including the parking for the entire 6.28 acres of the Property and the open spaces, along with requirements for exterior appearance and exterior lighting of the eight buildings to be constructed in the Complex." KSS began paying fees to the Condo Association to maintain the common areas.
By 2020, six of the eight buildings had been constructed and a contract for constructing the seventh was underway, all in conformity with the 1999 conditional rezoning and the 2004 plan of development.
In March 2020, after the State Health Commissioner declared that the COVID-19 pandemic posed a public health threat, the Governor issued an executive order prohibiting "all public and private in person gatherings of 10 or more individuals." Exec. Order 53 at 2 (Va. Mar. 23, 2020). The county manager for Henrico County also declared—and the Board of Supervisors confirmed—that a local emergency existed "because of the COVID-19 pandemic." On April 15, referencing the continuing emergency, the Board of Supervisors adopted an ordinance delegating to the planning director the authority to "approve plans of development during the Emergency."
By 2020, defendant Highwoods Services, Inc. had come to own the portion of the office park slated for the eighth building. Highwoods contracted with defendant UVP Holdings, LLC (UVP) to construct a daycare center on that site. Highwoods and UVP approached the Condo Association to request alterations to the 2004 development plan to accommodate the daycare center. The alterations included limiting open spaces, changing the lighting restriction, and altering the footprint and architectural appearance of the building. But the Condo Association opposed the changes.
Undeterred, Highwoods filed a request for a plan of development with the planning department in September 2020, listing UVP as the developer. The parties refer to that submission as the "Childcare Plan of Development."
At a public hearing on December 10, 2020, conducted by the planning department, the department's staff—including its director, R. Joseph Emerson Jr., and the plan reviewer, Michael Kennedy—recommended approving the Childcare Plan of Development. Before, during, and after the public hearing, the Condo Association and KSS objected to the plan. Nonetheless, the Childcare Plan of Development was approved on February 23, 2021.
In March 2021, KSS filed suit seeking declaratory and injunctive relief against six defendants: Henrico County, the Board of Supervisors, the Planning Commission, and Emerson (collectively, the "County Defendants"); Highwoods; and UVP. After the defendants all demurred, the trial court permitted KSS to file an amended complaint, to which the defendants again demurred.
Count I of the amended complaint asserted that KSS's procedural-due-process rights were denied because of alleged deficiencies in the public notice for the December 2020 hearing. Count II claimed that KSS's constitutional right to a "fair and impartial decisionmaker" was also violated because Emerson served in dual roles—first acting in "an executive advocacy capacity before the Planning Commission" to urge approval of the Childcare Plan of Development, and then approving the plan himself as the designee of the Board of Supervisors. Finally, Count III alleged that the Childcare Plan of Development impaired KSS's vested rights under Code § 15.2-2307. KSS requested a declaratory judgment that the plan was void and an injunction to prohibit construction of the daycare center.
After briefing and argument, the trial court sustained the defendants’ demurrers and dismissed the amended complaint with prejudice, for "the reasons stated by the Defendants in their written submissions and on the record at the hearing." KSS noted a timely appeal.
We review de novo the trial court's decision sustaining the defendants’ demurrers. Givago Growth, LLC v. iTech AG, LLC , 300 Va. 260, 264, 863 S.E.2d 684 (2021). Although we are not bound by KSS's legal conclusions, we accept as true the facts alleged in the amended complaint as well as the inferences that may be "fairly drawn from those facts." Id. ; Patterson , ––– Va. at ––––, 875 S.E.2d 65. "We then determine whether those [facts] and any reasonable inferences ... satisfy the legal threshold for proving a prima facie case ...." Patterson , ––– Va. at ––––, 875 S.E.2d 65.
Asserting four assignments of error, KSS argues that the trial court erred in dismissing Counts II and III of the amended complaint.2 We begin by describing the conceptual error that pervades KSS's legal arguments. We then explain why neither Count II nor Count III states a claim upon which relief can be granted.
KSS has conflated the approval of a zoning ordinance, on the one hand, with the approval of a plan of development that must comply with the zoning ordinance, on the other. "Zoning is a legislative power vested in the Commonwealth and delegated by it, in turn, to various local governments for the enactment of local zoning ordinances." Jennings v. Bd. of Supervisors of Northumberland Cnty. , 281 Va. 511, 516, 708 S.E.2d 841 (2011) (quoting Byrum v. Bd. of Supervisors of Orange Cnty. , 217 Va. 37, 39, 225 S.E.2d 369 (1976) ). "[O]nly the governing body of a locality may zone or rezone property and then only by ordinance." Laird v. City of Danville , 225 Va. 256, 262, 302 S.E.2d 21 (1983). The Code makes clear that the term " ‘[z]oning’ or ‘to zone’ means the process of classifying land within a locality into areas and districts ... by legislative action." Code § 15.2-2201 (emphasis added). "[L]egislative decisions in zoning matters are ‘presumed valid and will not be altered by a court absent clear proof that the action is unreasonable, arbitrary, [or] bears no reasonable relation to the public health, safety, morals, or general welfare.’ " Rowland v. Town Council , 298 Va. 703, 718, 842 S.E.2d...
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