GREGORY, et al.
BD. OF SUPERVISORS OF
April 16, 1999
Record No. 981184
JAMES E. GREGORY, SR., ET AL.
THE BOARD OF SUPERVISORS OF CHESTERFIELD COUNTY
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Present: All the Justices
OPINION BY JUSTICE BARBARA MILANO KEENAN
In this appeal, we consider whether the trial
court erred in upholding a decision by the Board of Supervisors
of Chesterfield County (the Board) denying an application for
rezoning that included proffers of monetary conditions
substantially lower in amount than those recommended by the
James E. Gregory, Sr., and Mary C. Gregory own
a 30-acre parcel of land with frontage on Newbys Bridge Road in
Chesterfield County (the property). The Gregorys have lived on
the property since purchasing it in 1955. In March 1994, the
Gregorys entered into a contract to sell the property to Oscar H.
Harriss filed an application with Chesterfield
County (the County) in March 1994, requesting that the zoning
classification of the property be changed from "Agricultural
A" to "Single-Family Residential R-9." Harriss
later amended the application to request that the property be
rezoned to "Single-Family Residential R-12" (the final
application). In the final application, Harriss proposed a
residential subdivision of 81 lots, with a density of about 2.7
dwelling units per acre.
In his original application to rezone the
property to an R-9 designation, which would have permitted a
maximum of 95 lots, Harriss proffered cash payments to the County
in the amount of $5,043 per lot for "infrastructure
improvements." In the final application, Harriss proffered
cash payments of $1,500 per lot. In both applications, Harriss
made additional proffers, which included the dedication of an
easement to permit the widening of Newbys Bridge Road and the
construction of off-site improvements designed to minimize the
developments impact on the surrounding area.
While Harriss’ applications were pending, the
County had in effect a written policy concerning cash proffers.
The policy set out a methodology for calculating the cost to the
County of providing public facilities for each new residence in a
proposed subdivision, including schools, roads, parks, libraries,
and fire stations. In 1995, based on calculations made using this
methodology, the policy provided that "residential rezoning
applicants are being asked to proffer $5,083 per lot."
After reviewing Harriss final
application, the County’s planning staff (the staff) recommended
approval of the application "subject to the applicant
addressing the impact on capital facilities and the
transportation network, consistent with the Board’s policy."
The staff noted that the proposed rezoning and land use conformed
to the County’s comprehensive plan, which designated the property
for residential use with a density of 1.51 to 4.0 units per acre.
However, the staff concluded that the proposal "fail[ed] to
adequately address concerns relative to impacts on the
transportation network and capital facilities."
In its report, the staff estimated that the
proposed 81-lot development would result in the addition of about
227 new residents, including an estimated 47 school-age children.
The staff also estimated that the new residences would generate
about 850 additional daily vehicle trips, primarily along Newbys
Bridge Road. The staff concluded that traffic generated from the
proposed development, along with other traffic using the new
subdivision roads as "cut through" routes, would
"increase traffic volumes on the adjacent subdivision
streets beyond the acceptable level." The staff estimated
that the "fiscal impact" on the County’s capital
facilities resulting from Harriss’ proposed subdivision of 81
dwelling units would be $5,156 per unit.
The Chesterfield County Planning Commission
(the Commission) considered Harriss’ applications to rezone the
property at meetings held in June and November 1994. The
Commission recommended denial of the final application, citing
concerns regarding the impact that the rezoning would have on
traffic, drainage, schools, and fire and rescue service.
The Board considered Harriss’ final application
at a public hearing in January 1995. During the hearing, 16
citizens spoke in opposition to the application, while one
citizen spoke in favor of it. Many of these area residents cited
the inability of Newbys Bridge Road to accommodate additional
traffic. They emphasized that the road had dangerous curves,
flooding problems, narrow sections preventing school buses from
passing each other in opposite directions, a lack of shoulders,
drainage ditches located close to the edge of the pavement, and a
very high volume of traffic using the road. Several of these
citizens also expressed concern regarding the impact that the
proposed development would have on area schools, particularly on
the elementary school that would serve children in the proposed
subdivision. The principal of that elementary school stated that
the school’s enrollment already exceeded planned capacity by 121
William Poole, Assistant Director of Planning
for the County, stated at the hearing that the proposed rezoning
of the property to R-12 was "consistent with the County’s
adopted Land Use Plan." Poole noted that the predominant
zoning classification in the general area of the property was
single-family residential, but that most of the land immediately
adjacent to the subject property was zoned for agricultural use.
Poole recommended that the application be approved only if the
Board was satisfied that the application adequately addressed the
fiscal impact of the proposed development on transportation,
schools, drainage, and other residential development in the area.
The Board voted to deny the application.
The Gregorys and Harriss (collectively,
Harriss) filed a motion for declaratory judgment in the Circuit
Court of Chesterfield County, seeking a declaration that the
Board’s denial of the rezoning application was, among other
things, unlawful, arbitrary, and unreasonable. At a bench trial,
Thomas E. Jacobson, the County’s Director of Planning, testified
that the County’s planning staff had reviewed the initial
versions of Harriss’ application and had recommended approval of
them. However, after reviewing the final application, the staff
recommended approval only if the Board determined that the
County’s "capital needs" would be met. Jacobson
acknowledged that the only significant difference between the
final application and the previous versions, other than reducing
the maximum number of lots from the original proposal of 95 to
81, was the decrease in the amount of the cash proffers.
Jacobson explained that under the County’s
policy, a rezoning applicant can proffer, in lieu of cash, the
construction of road or sidewalk improvements, or "a myriad
of [other] ways" of addressing the impact of the proposed
development on public facilities and infrastructure. He testified
that since the County adopted its voluntary proffer policy, about
5,500 new lots have been created through rezoning approvals, and
that about 51% of those lots were either approved with no cash
proffer or cash proffers of less than the recommended amount.
Donald J. Balzer, who qualified as an expert in
land use issues, testified that "the most appropriate and
reasonable use" of the property was an R-9 classification,
which allowed an even greater density than the R-12
classification Harriss sought. However, he also acknowledged that
a reasonable use of the property under its present agricultural
classification would be to "leave it as it is" or to
subdivide it into two or three lots for single family residences.
The trial court noted that "[p]ersuasive
evidence exists that full cash proffers or lack thereof played a
key factor in the Board[‘s] determination." The court found
that there was evidence from which to conclude that the County
"expected" cash proffers, but that "the evidence
is not as definitive" as the evidence presented in Board
of Supervisors v. Reed’s Landing Corp., 250 Va. 397, 463
S.E.2d 668 (1995). The court then concluded that the evidence of
the proposed development’s impact on health, safety, and welfare
made the reasonableness of the Board’s decision "fairly
The trial court further ruled that the Board’s
decision was not arbitrary or capricious because there was
evidence that two zoning classifications were reasonable for the
property, the existing "Agricultural A" classification
and the proposed R-12 classification. The court entered judgment
affirming the Board’s decision and dismissing the motion for
On appeal, Harriss first argues that the
evidence showed that the Board effectively imposed a proffer
requirement, contrary to Code Sect. 15.2-2298  and this Court’s decision in Reed’s
Landing. In response, the Board argues that the trial court
did not err in concluding that the Board based its decision on
legitimate and mandatory considerations of public health, safety,
and welfare. The Board contends that, based on the record in this
case, its denial of the final application did not violate Code
Sect. 15.2-2298 or this Court’s holding in Reed’s Landing.
We agree with the Board.
Initially, we note that, at all times relevant
to this appeal, Chesterfield County had in effect a conditional
zoning ordinance authorized by Code Sect. 15.2-2298. This
statute permits localities that have experienced specified
population growth to implement conditional zoning in which a
landowner is permitted, prior to a hearing before a governing
body, to submit voluntary written proffers of "reasonable
conditions" as part of the landowners proposed
amendment to the zoning ordinance. Code Sect. 15.1-2298(A).
Those conditions may be made part of a rezoning if the rezoning
itself gives rise to the need for the conditions, and if the
conditions have a reasonable relation to the rezoning and are in
conformity with the comprehensive plan. Id.
The declared purpose of the statutes permitting
conditional zoning is to "provide for the orderly
development of land" when "competing and incompatible
uses conflict." Proffers submitted by a zoning applicant are
permitted "for the protection of the community" in
which the property subject to the proposed rezoning is located.
Code Sect. 15.2-2296.
These statutory provisions allow a local
governing body to consider voluntarily proffered conditions as
one factor in deciding whether to grant a proposed rezoning.
Although a governing body may exercise its discretion to grant or
deny a rezoning request that contains such proffered conditions,
the governing body must make its decision based on the merits of
the entire application and may not require that any proffered
conditions be included in the rezoning application.
In Reed’s Landing, we held that under
former Code Sect. 15.1-491.2:1, the predecessor statute to
Code Sect. 15.2-2298, a local governing body is "not
empowered to require a specific proffer as a condition precedent
to a rezoning." 250 Va. at 400, 463 S.E.2d at 670. The
evidence in that case showed that there was no public opposition
to the proposed rezoning, that the Powhatan County Planning
Commission unanimously recommended that the rezoning be approved,
and that, since the adoption of "proffer guidelines,"
no R-1 rezonings had been approved without the recommended cash
proffer. Id. at 399, 463 S.E.2d at 669. Thus, the record
supported the trial court’s conclusion that the sole reason the
Powhatan County Board of Supervisors denied the developer’s
rezoning request was the developer’s refusal to make a cash
proffer of a fixed amount. Id. at 400, 463 S.E.2d at 670.
Under those facts, we held that the trial court correctly ruled
that the proffer was not voluntary within the meaning of the
statute, and that the Board imposed an unlawful condition
precedent on the developer. Id.
In contrast to the record in Reed’s Landing,
the trial court in the present case did not find that the
rezoning request was denied solely due to the absence of cash
proffers in a particular amount. Although the court found
"persuasive evidence" that the absence of maximum cash
proffers "played a key factor" in the Board’s decision,
and that cash proffers were "expected," the court also
found ample evidence supporting the Boards denial of the
application based on health, safety, and welfare concerns.
The decision of a board of supervisors denying
an application for rezoning is a legislative act that is presumed
to be reasonable. City Council v. Wendy’s of Western Va., Inc.,
252 Va. 12, 14, 471 S.E.2d 469, 470 (1996); County Bd. v.
Bratic, 237 Va. 221, 227, 377 S.E.2d 368, 371 (1989); Board
of Supervisors v. Jackson, 221 Va. 328, 333, 269 S.E.2d 381,
384 (1980). This presumption will stand until the applicant
presents probative evidence that the legislative act was
unreasonable. Id. If the applicant’s challenge is met by
the board with evidence of reasonableness sufficient to render
the issue fairly debatable, then the legislative action must be
sustained. Wendy’s of Western Va., 252 Va. at 15, 471
S.E.2d at 471; Bratic, 237 Va. at 227, 377 S.E.2d at 371; Jackson,
221 Va. at 333, 269 S.E.2d at 385. A matter is fairly debatable
if, when evaluated by quantitative and qualitative measures, the
evidence in support of the opposing views could lead objective
and reasonable persons to reach different conclusions. Wendys
of Western Va., 252 Va. at 15, 471 S.E.2d at 470-71; Board
of Supervisors v. Pyles, 224 Va. 629, 638, 300 S.E.2d 79, 84
Harriss challenged the presumption of
reasonableness in this case with probative evidence suggesting
that the Board based its decision on an impermissible proffer
requirement. The Board responded to this evidence of
unreasonableness with evidence that cash proffers were not
required as a condition precedent to a rezoning, and that the
rezoning requested by Harriss would adversely impact public
health, safety, and welfare in the area of the proposed
development. This evidence of reasonableness presented by the
Board was sufficient to rebut Harriss’ contention that the Board
effectively imposed a proffer requirement on his rezoning
Harriss argues, nevertheless, that the Board’s
decision was unreasonable because the only practical, beneficial
use of the property was to develop it as a residential
subdivision. The Board contends in response that the evidence
supports the trial courts conclusion that there were two
reasonable zoning classifications for the property, the existing
agricultural designation and the proposed R-12 designation. The
Board asserts that, therefore, the trial court properly concluded
that the Board was free to choose between these classifications.
We agree with the Board.
A property owner seeking rezoning bears the
burden of clearly demonstrating that the existing zoning
classification is no longer reasonable. See Jackson,
221 Va. 334, 269 S.E.2d at 385. When an existing zoning
classification and a proposed zoning classification are both
reasonable, a legislative body, rather than a property owner or a
court, has the prerogative to choose between those
classifications. Wendy’s of Western Va., 252 Va. at 18,
471 S.E.2d at 473; Board of Supervisors v. Miller & Smith,
Inc., 242 Va. 382, 384, 410 S.E.2d 648, 650 (1991); Jackson,
221 Va. at 335, 269 S.E.2d at 386.
As stated above, there was evidence that an
R-12 zoning classification would permit a reasonable use of the
property, since such a classification would conform to the
County’s comprehensive plan and would be consistent with other
existing and anticipated residential developments in the area.
However, the evidence also established that the property was
predominantly abutted by parcels zoned for agricultural use, and
that existing agricultural uses were present throughout the
surrounding general area. In addition, there was evidence that a
reasonable use of the property under its present agricultural
zoning would be to subdivide it into two or three lots.
Based on this record, we conclude that Harriss
failed to meet his evidentiary burden of demonstrating that the
present zoning classification of the property was unreasonable,
and that the merits of his rezoning application were fairly
debatable. Under these circumstances, the trial court was not at
liberty to substitute its judgment for that of the legislative
body. See County of Lancaster v. Cowardin, 239 Va.
522, 525, 391 S.E.2d 267, 269 (1990); City of Virginia Beach
v. Virginia Land Investment Ass’n No. 1, 239 Va. 412, 415,
389 S.E.2d 312, 314 (1990). Thus, the trial court properly upheld
the Boards legislative determination.
For these reasons, we will affirm the trial
 Effective December 1, 1997, Title 15.1
was re-codified as Title 15.2 and
Code Sect. 15.1-491.2:1 became
Code Sect. 15.2-2298. 1997 Va. Acts of Assembly, ch.
587. Since there were no substantive changes in the sections at
issue, we will refer to the current code sections in this