HELMICK, et al. v. TOWN
September 12, 1997
Record No. 962235
MELVIN K. HELMICK, ET AL.
TOWN OF WARRENTON
OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge
Present: Carrico, C.J., Compton, Stephenson, Lacy,
Hassell, Keenan, and Koontz, JJ.
In this appeal, we consider whether the trial court properly
sustained a demurrer to the landowners’ amended bill of complaint
challenging the refusal of the Town of Warrenton to consent to
the vacation of a subdivision plat.
The property at issue is approximately 3.2 acres of land zoned
for multi-family, residential use in the Town of Warrenton (the
Town). The property originally was Part 1 of Copper Mill, a
townhouse subdivision developed by KRC Corporation. KRC recorded
a subdivision plat for Sections 1 and 2 of Copper Mill and
obtained approval of a site plan for building townhouses on both
sections. Townhouses were built and sold on Section 1. There was
no development on Section 2, and the site plan expired.
In 1991, Melvin K. and Myrtlee I. Helmick (the Helmicks)
bought Section 2 at a foreclosure sale. They requested an
extension of the site plan for townhouses on Section 2, but the
Town refused to extend the plan. The Helmicks then sought to
develop the property as an apartment complex for the elderly and
requested the Town to vacate the subdivision plat applicable to
Section 2 pursuant to ? 3-13
of the Town’s zoning ordinance. After a public hearing, the Town
voted to withhold its consent to the vacation of the subdivision
The Helmicks filed an amended bill of complaint asserting that
the Town’s refusal to vacate the subdivision plat was
"unreasonable, unwarranted, discriminatory, arbitrary,
capricious" and constituted both a permanent and temporary
taking of their land without just compensation in violation of
Article I, ? 11
of the Constitution of Virginia. The Helmicks also asserted that ? 3-13 of the Town’s
zoning ordinance was unconstitutional because it did not set out
standards to be applied by the Town in vacating the subdivision
plat. The Town demurred to the amended bill of complaint.
The trial court sustained the Town’s demurrer, deciding
initially that the Town’s action in refusing to vacate the
subdivision plat was a legislative act left to the discretion of
the governing body. Based on this determination, the trial court
held that the ordinance was constitutional and that the amended
bill of complaint failed to allege facts sufficient to overcome
the presumption of reasonableness attaching to a legislative act
and failed to allege that the Helmicks had been denied all
economic use of their property. The trial court dismissed the
amended bill of complaint with prejudice and without leave to
amend. Because we conclude that the
trial court did not err in sustaining the Town’s demurrer, we
will affirm the judgment of the trial court.
The Helmicks first contend that the Town’s action in refusing
to consent to the vacation of a subdivision plat is an
administrative, not a legislative act. While there are no
bright-line rules for the determination of whether an act is
administrative or legislative, we have said that administrative
acts generally implement existing laws while legislative acts
create new ones. Whitehead v. H and C Development Corp.,
204 Va. 144, 150, 129 S.E.2d 691, 695 (1963). A legislative act
involves the "balancing of the consequences of private
conduct against the interests of public welfare, health, and
safety." Board of Supervisors of Fairfax County v.
Southland Corp., 224 Va. 514, 522, 297 S.E.2d 718, 722
The ability to regulate the use of land is part of the police
power vested in the legislature which can, in turn, be delegated
to local governing bodies. Id. at 521, 297 S.E.2d at 721.
And we have observed that an ordinance that "regulates or
restricts conduct with respect to . . . property
. . . is purely legislative." Blankenship v.
City of Richmond, 188 Va. 97, 104, 49 S.E.2d 321, 324 (1948).
If allowed by statute, local governing bodies may delegate the
exercise of these legislative functions to subordinate bodies,
officers, or employees, but the subordinate body’s exercise of
these functions continues to be considered a legislative action. Southland,
224 Va. at 522, 297 S.E.2d at 722; National Maritime Union of
America v. City of Norfolk, 202 Va. 672, 680, 119 S.E.2d 307,
The Town’s action at issue here is authorized by the Virginia
Land Subdivision Act, ?? 15.1-465
through -485. That Act addresses the approval, rejection, and
vacation of subdivision plats and delegates this portion of the
state’s police power to regulate the use of land to local
governing bodies. Board of Supervisors of Loudoun County v.
Georgetown Land Co., 204 Va. 380, 383, 131 S.E.2d 290, 292
(1963). Section 15.1-481 describes procedures for vacating a
subdivision plat when no lots have been sold and specifically
requires the "consent of the governing body, or its
authorized agent," when the landowners seek the vacation. ? 15.1-481(1). Section
3-13 of the Town’s zoning ordinance authorizes the vacation of
subdivision plats, "in accordance with Section 15.1-481, et
seq.," but does not delegate that function to any
"authorized agent." Thus, the Town elected to retain
exercise of this function.
In so far as the nature of the power exercised is concerned,
we see no difference between granting or denying a special use
permit, which we have classified as a legislative act, Byrum
v. Board of Supervisors of Orange County, 217 Va. 37, 41, 225
S.E.2d 369, 372 (1976), and consenting to the vacation of a
subdivision plat. Both actions are taken pursuant
to a delegation of the police power. The determination whether to
vacate a subdivision plat, like the decision regarding the grant
or denial of a special use permit, is a decision which regulates
or restricts the use of property. The approval and recordation of
a subdivision plat requires a governing body to plan for the
impact the type of development will have on the infrastructure
and services which the locality will have to provide. Vacating a
recorded subdivision plat requires the decision-maker to consider
the desires of the landowner in conjunction with the interests of
the community in light of the circumstances existing at the time
of the proposed vacation. Such balancing of interests is
characteristic of legislative decision-making. Therefore, we
conclude that the trial court correctly determined that the
decision of the Town not to consent to the vacation of a
subdivision plat was a legislative act.
The trial court was also correct in sustaining the Town’s
demurrer to the Helmicks’ allegations that the refusal of the
Town to consent to the vacation of the plat was unreasonable,
unwarranted, arbitrary, capricious, and discriminatory. On
judicial review, the Town’s legislative act is vested with a
presumption of reasonableness. Southland, 224 Va. at
522-23, 297 S.E.2d at 722; Ames v. Town of Painter, 239
Va. 343, 347, 389 S.E.2d 702, 704 (1990). To withstand a
demurrer, the Helmicks had to allege facts which, if true, would
be probative evidence that refusal to consent was unreasonable. Concerned
Taxpayers of Brunswick County v. County of Brunswick, 249 Va.
320, 328, 455 S.E.2d 712, 716 (1995). If such allegations were
made, the demurrer cannot be sustained, and the Town would be
required to produce evidence that its action was reasonable. Id.
The facts alleged by the Helmicks as proof of unreasonableness
fall into two categories. The first is based on the status of
adjoining properties. The Helmicks alleged that an apartment
complex exists on the property adjacent to their property’s
western boundary, and that construction of an apartment complex
for the elderly has been approved for property adjoining the
southern boundary of their land. The second complex is located on
land zoned as C-1 in which apartments are not a permitted use.
The Town granted a special use permit for the apartments only
three months before it refused to consent to the vacation of the
Helmicks’ subdivision plat. These facts, the Helmicks assert,
show that the Town’s action was discriminatory, arbitrary, and
Refusing to allow a specific use of land is discriminatory
when "a land use permitted to one landowner is restricted to
another similarly situated." Board of Supervisors of
James City County v. Rowe, 216 Va. 128, 140, 216 S.E.2d 199,
209 (1975). The Helmicks’ pleadings, however, do not allege that
either adjacent property was subject to an approved subdivision
plat which had to be vacated before the respective apartment
complexes could be constructed. The only allegation supporting
the contention that the properties are similarly situated is that
they are adjacent. Adjacency alone is insufficient to establish a
zoning discrimination claim. Id. at 135, 216 S.E.2d at
The second category of alleged facts supporting a claim that
the Town’s action was unreasonable relates to the Town’s
motivation. The Helmicks allege that the Town refused to consent
to the vacation of the plat "plainly to harass" the
Helmicks because of previous litigation brought by the Helmicks
against the Town. In considering whether a legislative act is
reasonable, however, generally the motives of the governing body
in undertaking the act are immaterial. Ames, 239 Va. at
349, 389 S.E.2d at 705; Blankenship, 188 Va. at 105, 49
S.E.2d at 324.
The allegations in the pleadings, taken as true, do not
support claims that the action was arbitrary, capricious,
unwarranted, or discriminatory and are insufficient to overcome
the presumption of reasonableness afforded the legislative action
of the Town. Therefore, the trial court properly sustained the
Town’s demurrer to these claims.
The Helmicks also assert that the trial court erred in holding
that ? 3-13 of
the Town’s ordinance is constitutional. The Helmicks argue that
the section contains no guidelines or criteria to be followed in
vacating a subdivision plat and, as such, is over broad and
unconstitutional. We disagree.
Section 3-13 states:
Any plat of record may be vacated in accordance with the
provisions of Section 15.1-481, et seq. of the Code
We first note that, on its face, this ordinance references
certain statutory provisions which must be followed in the
process of vacating a subdivision plat; thus, it cannot be said
that the ordinance contains no more than permission to vacate a
plat, devoid of any guidance. And, as noted by the trial court,
the Helmicks did not attack ? 15.1-481
as invalid because it fails to provide sufficient standards for
the exercise of this delegated authority.
More importantly, the general requirement that guidelines
accompany the delegation of legislative authority to avoid
vesting arbitrary discretion in the decision-maker, Andrews v.
Board of Supervisors of Loudoun County, 200 Va. 637, 639, 107
S.E.2d 445, 447 (1959), is subject to an exception first set out
in Gorieb v. Fox, 145 Va. 554, 563-64, 134 S.E. 914, 917
where it is difficult or impracticable to lay down a
definite rule, or where the discretion relates to the
administration of a police regulation and is necessary to
protect the public morals, health, safety and general
This exception is premised on the understanding that
legislation cannot address every variable which will arise in the
application or administration of the delegated authority. See
also Maritime Union, 202 Va. at 680-81, 119 S.E.2d
In a previous case challenging the validity of the Virginia
Land Subdivision Act, we recognized that the General Assembly
left considerable discretion to the local governments in
administering the Act. The Act is valid, nevertheless, because
the nature of decisions regarding the subdivision and development
of land requires "the local governing body’s knowledge of
local conditions and the needs of its individual community."
Georgetown Land, 204 Va. at 383, 131 S.E.2d at 292. Nor
are the decisions of the local governing body made under the Act
shielded from judicial review. The decisions are always subject
to the standard of reasonableness. Id. at 384, 131 S.E.2d
at 292. If the governing body exercises its discretion in an
arbitrary, capricious, or unreasonable manner, the aggrieved
party has recourse through the courts. Byrum, 217 Va. at
41, 225 S.E.2d at 373; Gorieb, 145 Va. at 566, 134 S.E. at
The decision in this case, the vacation of a subdivision plat,
not only involves the exercise of the police power, but also
falls neatly into that category of circumstances in which
specific guidelines for making the decision are difficult to
craft and depend on local conditions. As noted above, once a
subdivision plat is approved and recorded, the governing body and
other landowners expect and rely upon development of the property
according to that plan. Whether abandonment of that plan is
advisable for the community will depend on factors unique to that
situation. Thus, local conditions and needs are the factors most
important in making the decision. These factors cannot be
distilled into uniform standards applicable to every locality and
in every circumstance. The exercise of this discretion by the
Town is not absolute, but fully reviewable, as demonstrated by
this litigation. Accordingly, the trial court correctly held that
? 3-13 of the
Town’s ordinance is valid.
Lastly, the trial court properly sustained the Town’s demurrer
to the Helmicks’ assertion that the Town’s refusal to extend the
expired site plan and refusal to vacate the subdivision plat has
deprived them of all economically viable use of the land without
just compensation in violation of Article I, ? 11 of the
Constitution of Virginia. The pleadings do not allege sufficient
facts to establish the Helmicks’ claim.
There is no unconstitutional taking unless the government’s
action deprives the landowner of all economic use of the land. Board
of Supervisors of Prince William County v. Omni Homes, Inc.,
253 Va. 59, 72, 481 S.E.2d 460, 467 (1997). The pleadings
acknowledge that subdivision of the Helmicks’ property into
townhouse lots is proper under the zoning ordinance. The Helmicks
did not allege that they had applied for, or were denied, a new
site plan or that they had complied with the requirements for
obtaining an extension of the site plan under ? 15.1-475(E)(1) and
were denied such an extension.
Since development of the property with townhouses is an
economically viable use of the property, and the pleadings do not
assert that the Town has precluded such development, there has
been no unconstitutional taking of property.
Accordingly, for the reasons stated, we will affirm the
judgment of the trial court.
 Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.
 The Helmicks previously filed
an original and a substitute bill of complaint. The trial court
sustained demurrers to both pleadings but allowed the Helmicks to
file the amended bill of complaint under consideration here.
 The Helmicks’ argument that ? 15.1-481(1) implies that
the legislature intended that this function be delegated and not
performed by the governing body is without merit.
In Byrum, we overruled the holding in City of
Winchester v. Glover, 199 Va. 70, 72, 97 S.E.2d 661, 663
(1957), that the grant or denial of a special use permit by the
city council was an administrative act. Byrum, 217 Va. at
41, 225 S.E.2d at 372.
The Helmicks also asserted that the trial court erred in
referring to the expectations of adjacent landowners in
determining the reasonableness of the Town’s actions because such
expectations were not part of the pleadings. We do not reach this
assignment of error because the trial court’s finding that the
pleadings were insufficient left the presumption of
reasonableness in place and eliminated the need for the Town to
produce evidence of reasonableness.
 The Helmicks challenge the
constitutionality of ?
15.1-481 here, but because they did not seek to have the statute
declared unconstitutional below, we will not consider the
challenge here. Rule 5:25.
Section 15.1-475(E)(1) requires that an application for extension
of a site plan be filed "prior to expiration of a . . .
final site plan." When the Helmicks applied for an extension
of the site plan prior to seeking vacation of the subdivision
plat, the site plan had already expired.