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RIVERVIEW FARM ASSOCIATES VIRGINIA GENERAL PARTNERSHIP, et al. v. BOARD OF SUPERVISORS OF CHARLES CITY COUNTY, et al.



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RIVERVIEW FARM
ASSOCIATES VIRGINIA GENERAL PARTNERSHIP, et al.

v.

BOARD OF SUPERVISORS OF
CHARLES CITY COUNTY, et al.


March 3, 2000

Record No. 990853

RIVERVIEW FARM ASSOCIATES VIRGINIA GENERAL
PARTNERSHIP, ET AL.

v.

BOARD OF SUPERVISORS OF CHARLES CITY COUNTY, ET
AL.

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY

Thomas B. Hoover, Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.

OPINION BY JUSTICE BARBARA MILANO KEENAN


In this appeal, we consider whether the trial
court erred in sustaining a demurrer to a bill of complaint for
declaratory judgment challenging a local governing body’s
decision approving a conditional rezoning application.

Riverview Farm Associates Virginia General
Partnership, Jearald D. Cable, Robert L. Waldrop, and Cardwell
Ferguson Hannabass (collectively, the plaintiffs) filed a bill of
complaint for declaratory judgment against the Charles City
County Board of Supervisors (the Board) and Weanack Land, Limited
Partnership (Weanack). The plaintiffs sought a declaration that
the Board’s decision rezoning 41.27 riverfront acres owned by
Weanack (the Weanack property) to an "Industrial M-2-C"
classification was unreasonable, arbitrary, and void. All the
plaintiffs owned property located within about 2,000 feet of
either the Weanack property or the access road serving the
Weanack property.

The Weanack property is located next to the
Shirley Plantation, an historical landmark, and includes a port
on the James River used for the docking, loading, and unloading
of barges. In 1995, the Board changed the Weanack property’s
zoning classification from "A-1 Agricultural" to
"Business Conditional B-1-C." The purpose of the 1995
rezoning was to permit use of the Weanack property as a port to
receive barges delivering containerized municipal waste destined
for the Charles City County landfill, which is operated jointly
by Charles City County (the County) and a private company. These
waste transportation operations on the Weanack property began in
1996.

A condition of the "B-1-C" rezoning
prohibited truck traffic entering or leaving the Weanack property
from using Route 5 or Route 608. A second condition limited truck
traffic from the dock facility to Route 106/156 to "[n]o
more than 125 truck loads per day." This truck traffic
reached Route 106/156 by using an access road on an easement over
property owned by T. Davis Copeland and Pamela P. Copeland (the
Copelands). At the time of the proceedings at issue, a lawsuit
was pending between the Copelands and Weanack concerning
Weanack’s use of the easement.

In October 1997, Weanack filed an application
to rezone the Weanack property from the "Business
B-1-C" classification to "Industrial M-2-C."
Weanack also requested that the Board amend the Charles City
County zoning ordinance (zoning ordinance) to include in its
"Industrial M-2" classification specified waterfront
industrial uses, including "docks and areas for the receipt,
storage and transhipment of waterborne commerce." In
December 1997, the Board voted to amend the zoning ordinance’s
"Industrial M-2" classification as requested, but
deferred consideration of the application to rezone Weanack’s
property.

Weanack’s rezoning application included 11
detailed proffers. Among these proffers, Weanack stated the hours
during which its facility would be operated, and established
different time restrictions for trucking, "land-based
operations" such as loading and unloading barges, and
"marine-based operations" such as docking barges.
Weanack further agreed in the proffers that its trucks would not
travel on Routes 5 and 608.

Weanack’s proffers also addressed the volume of
truck traffic that would be permitted for the transportation of
waste to the County’s landfill. Weanack agreed to limit the
number of truck trips per day entering or exiting Route 106/156
to 150, 250, or 300 truckloads, depending on the improvements
made to the access road that Weanack used to reach Route 106/156.
In February 1998, the Board granted Weanack’s rezoning
application and accepted the above proffers as part of the
rezoning.

After the Board filed a demurrer to the
plaintiffs’ original bill of complaint, the plaintiffs sought to
add the Copelands as plaintiffs in the case. The Board and
Weanack objected to the plaintiffs’ request. The trial court
denied the request on the grounds that "the Copelands do not
qualify as necessary parties to this case, and further that the
Copelands should have filed their own case, or filed their
requested amendment, within 30 days [of the Board's
decision]." The trial court also sustained the Board’s
demurrer to the bill of complaint, but granted the plaintiffs
leave to file an amended bill of complaint.

In Count I of their second amended bill of
complaint, the plaintiffs alleged that the Board’s decision
rezoning the Weanack property violated Code
? 15.2-2297(A)(vii), which requires that proffers made as
part of a rezoning application be in conformity with the local
governing body’s comprehensive plan. They alleged that two of
Weanack’s proffers were not in conformity with the County’s 1991
Comprehensive Plan. First, the plaintiffs alleged that the use of
an access road over the Copeland property for truck traffic
leaving the Weanack facility created "an intensive
industrial use area" on the Copelands’ property, contrary to
its agricultural designation in the County’s 1991 Comprehensive
Plan. Second, they alleged that Weanack’s proffer concerning the
facility’s hours of operation also was not in conformity with the
1991 Plan.

In addition, the plaintiffs alleged that their
use of their own properties would be adversely impacted by the
trucking noise, litter, dust, odors, and exposure to disease from
the garbage unloaded on the Weanack property and transported over
the access road on the Copeland property. They also alleged that
the Board’s acceptance of Weanack’s proffers as part of the
rezoning was "unreasonable and illegal."

In Count II, the plaintiffs alleged that the
rezoning violated the County’s zoning ordinance because the
rezoning permitted a private road in an area zoned for
agricultural use to be part of an industrial use, when
"there is no language authorizing the use of access roads in
other zoned areas." The plaintiffs also alleged that the
rezoning imposed "intensive" industrial uses on the
Copeland property and converted that property to an industrial
use contrary to its agricultural use classification. In Count V,
the plaintiff alleged that the Board’s decision granting the
rezoning application constituted illegal "spot zoning."
[2]

The Board and Weanack filed demurrers to the
second amended bill of complaint. They also asked the trial court
to strike the plaintiffs’ pleading, arguing that the plaintiffs
improperly attempted to assert claims that could only be brought
by the Copelands, contrary to the trial court’s earlier ruling
precluding such claims.

The trial court struck Count II and those parts
of Counts I and V "setting forth . . . allegations
concerning the Copeland property." The court also ruled that
Count II failed to state a valid claim, and alternatively held
that it constituted an "impermissible new claim." The
trial court sustained the demurrer to the balance of Counts I and
V and dismissed the case with prejudice.

On appeal, the plaintiffs argue that the trial
court erred in denying their request to add the Copelands as
plaintiffs. They assert that if an action challenging a local
governing body’s zoning decision has been brought within the
30-day time period following the decision, as required by Code
? 15.2-2285(F), additional plaintiffs may be added after
the 30-day period has expired. The plaintiffs contend that their
second amended bill of complaint does not allege
"impermissible new claims" concerning the Copelands’
property because these claims were based on the same facts
alleged in the original bill of complaint and sought the same
relief.

The plaintiffs also argue that Count I stated a
valid cause of action in alleging that the Board improperly
accepted certain proffers from Weanack that were contrary to the
County’s 1991 Comprehensive Plan. They contend that Count II
stated a cause of action, irrespective whether the Copelands were
added as parties, because the plaintiffs alleged that the Board
violated the County’s zoning ordinance by accepting proffers that
"impose industrial uses" on property zoned for
agricultural use. The plaintiffs also assert that they properly
alleged a claim of illegal spot zoning in Count V.

In response, the Board and Weanack
(collectively, Weanack) argue that the trial court properly
denied the request to add the Copelands as plaintiffs, since the
Copelands failed to file suit contesting the Board’s decision
within the 30-day period required by Code ? 15.2-2285(F).
Weanack asserts that after denying this request, the trial court
correctly sustained the demurrer to claims relating to the
proffers addressing truck traffic on the access road, since these
claims could only be brought by the Copelands. Weanack further
contends that the plaintiffs failed to allege any facts to
support their allegation in Count I that the proffered conditions
were inconsistent with the County’s comprehensive plan.

Weanack also contends that the plaintiffs
failed to state a cause of action in Count II because they
alleged no facts from which the court could conclude that the
conditional rezoning of the Weanack property "imposed"
an industrial use on the Copeland property. Weanack argues that
property zoned for agricultural use, which is adjacent to
property zoned for industrial use, does not have to be rezoned to
an industrial classification before being used to provide access
for traffic travelling to and from the industrial site. Finally,
Weanack asserts that Count V is legally insufficient because it
does not allege that the rezoning was intended solely to serve
the interests of a private party.

Initially, we consider the plaintiffs’ claim
that the trial court erred in denying their request to add the
Copelands as plaintiffs in the case. Code ? 15.2-2285(F)
requires that an action contesting a rezoning decision of a local
governing body be filed in the circuit court within 30 days of
the decision. The rezoning of the Weanack property occurred on
February 10, 1998, and the plaintiffs requested that the
Copelands be added as parties to the appeal on May 29, 1998.
Thus, the plaintiffs’ request to add the Copelands was made after
the statutory period had expired for the Copelands to bring an
action alleging the claims asserted in the original bill of
complaint.

We disagree with the plaintiffs’ argument that
the trial court’s ruling was contrary to our decision in Friends
of Clark Mountain Found., Inc. v. Board of Supervisors
, 242
Va. 16, 406 S.E.2d 19 (1991). There, the plaintiffs, who were
owners of land in the vicinity of a rezoned tract, filed suit
against the local governing body seeking a declaratory judgment
that the decision rezoning the tract and granting a special use
permit was unreasonable, arbitrary, and capricious. The
plaintiffs failed to join as defendants in the suit the owner of
the rezoned tract and a person holding an option to purchase the
tract. 242 Va. at 18-19, 406 S.E.2d at 20.

The trial court dismissed the suit on the
grounds that the owner of the tract and the option holder were
necessary parties and had not been joined as defendants in the
suit prior to the expiration of the 30-day appeal period. We
reversed the judgment, holding that under former Code
? 15.1-493(G), the only required parties at the time of
filing the appeal are the contestant and the local governing
body. Therefore, we concluded that the expiration of the 30-day
appeal period did not preclude the contestant from seeking the
joinder of other necessary parties to the suit. 242 Va. at 21-22,
406 S.E.2d at 22.

Our holding in Clark Mountain was based
on the principle that when a contesting action has been initiated
in conformance with statutory requirements, the action should not
be adjudicated until any remaining necessary parties have
intervened or been brought into the proceeding. This approach
assures that the legislative body’s decision will be reviewed in
a fair, orderly, and prompt manner. Id. Here, however,
these concerns were not present because the Copelands were not
necessary parties to an adjudication of the counts contained in
the original bill of complaint. Thus, we conclude that the
trial court did not err in denying the plaintiffs’ request to add
the Copelands as plaintiffs in the action.

We next consider the trial court’s decision
sustaining the plaintiffs’ demurrer to the second amended bill of
complaint. The standard of review that we apply is well
established. We consider as true all material facts alleged in a
bill of complaint, all facts impliedly alleged, and all
reasonable inferences that can be drawn from such facts. Moore
v. Maroney
, 258 Va. 21, 23, 516 S.E.2d 9, 10 (1999); Concerned
Taxpayers of Brunswick County v. County of Brunswick
, 249 Va.
320, 323, 455 S.E.2d 712, 713 (1995); Krantz v. Air Line
Pilots Ass’n, Int’l
, 245 Va. 202, 204, 427 S.E.2d 326, 327
(1993). However, a demurrer does not admit the correctness of the
conclusions of law asserted in a bill of complaint. Moore,
258 Va. at 23, 516 S.E.2d at 10; Ward’s Equip., Inc. v. New
Holland N. America
, 254 Va. 379, 382, 493 S.E.2d 516, 518
(1997).

The trial court is not permitted on demurrer to
evaluate and decide the merits of the allegations set forth in a
bill of complaint, but only may determine whether the factual
allegations of the bill of complaint are sufficient to state a
cause of action. Concerned Taxpayers of Brunswick County,
249 Va. at 327-28, 455 S.E.2d at 716; Fun v. Virginia Military
Inst.
, 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). Thus,
the trial court errs in sustaining a demurrer if a bill of
complaint, considered in the light most favorable to the
plaintiff, states a cause of action. W.S. Carnes, Inc. v.
Board of Supervisors
, 252 Va. 377, 384, 478 S.E.2d 295, 300
(1996); see Luckett v. Jennings, 246 Va. 303, 307,
435 S.E.2d 400, 402 (1993).

We conclude that the trial court erred in
sustaining the demurrer to Count I because it stated a cause of
action that could be asserted by the plaintiffs independent of
the Copelands. Count I challenged the "off-site"
proffers regarding truck traffic on the basis of the alleged
impact of the proffered conditions on the plaintiffs’ use of
their own properties, not on the basis of any property right held
by the Copelands. The plaintiffs live within sufficiently close
proximity to the property that is the subject of the rezoning to
possess a "justiciable interest" in the litigation of
Count I. See Cupp v. Board of Supervisors, 227 Va.
580, 589, 318 S.E.2d 407, 411 (1984); Board of Supervisors v.
Fralin & Waldron, Inc.
, 222 Va. 218, 224, 278 S.E.2d 859,
862 (1981). Thus, the absence of the Copelands as parties did not
bar consideration of the issue whether the "off-site"
proffers failed to conform to the County’s comprehensive plan and
rendered the zoning unreasonable.

The plaintiffs also alleged that the proffer
permitting marine-based operations "24 Hours [per day], 7
days a week" was inconsistent with the County’s
comprehensive plan. Weanack argued on demurrer that the County’s
1998 Comprehensive Plan, adopted three months after the Board’s
approval of the Weanack rezoning application, designates the
Weanack property for industrial use. Weanack’s argument, however,
does not resolve the plaintiffs’ claim concerning the hours and
days of operation, or their claim regarding the
"off-site" proffers, as a matter of law.
[3]

Proffered conditions are permitted as part of a
rezoning "for the protection of the community" in which
the property that is the subject of the proposed rezoning is
located. Code ? 15.2-2296; Gregory v. Board of
Supervisors
, 257 Va. 530, 536, 514 S.E.2d 350, 353 (1999).
Code ? 15.2-2297(A) imposes several requirements that must
be met before proffered conditions may be incorporated as part of
a rezoning amendment. Included among these requirements are
provisions that "the conditions shall have a reasonable
relation to the rezoning," and that "all such
conditions shall be in conformity with the [local governing
body's] comprehensive plan." Id. The plaintiffs were
entitled to present evidence supporting their allegations that
the proffered conditions concerning truck traffic were not in
conformity with the County’s comprehensive plan and rendered the
zoning unreasonable because they permitted heavy truck traffic to
proceed near the plaintiff’s property over property designated
for agricultural use. The plaintiffs also were entitled to
present evidence to support their allegation that the proffered
condition concerning the hours of operation of the port facility
rendered the zoning unreasonable and was not in conformity with
the County’s comprehensive plan that designated the neighboring
properties for agricultural use.

We also conclude that the plaintiffs stated a
cause of action in Count I, based on the facts set forth in their
pleading, by alleging that the rezoning was "not consistent
with the . . . [c]omprehensive [p]lan, and was
arbitrary and capricious, unreasonable, and incompatible with
surrounding land uses." Although the 1998 Comprehensive Plan
designated the Weanack property for industrial use, an issue
remained whether this particular rezoning action, because of its
proffered conditions, was a reasonable exercise of the Board’s
authority. This portion of the claim could not be resolved as a
matter of law, but could only be determined after consideration
of evidence presented by the parties.

We next conclude that the trial court did not
err in dismissing Count II of the second amended bill of
complaint, which contained two basic allegations. The first was
that the proffered conditions regarding truck traffic constitute
"a conversion of the privately owned access road to
industrial use without proper rezoning." The trial court did
not err in dismissing this portion of Count II because it
involves the property rights of the Copelands, who were not
parties to this suit.

The second allegation of Count II centered on
the plaintiffs’ assertion that the County’s zoning ordinance does
not allow "zoning proffers which impose an industrial use on
a private access road which is not located within the industrial
zone or district." The trial court did not err in dismissing
this portion of Count II because it fails to state a cause of
action. First, the proffered conditions do not impose any
"use" on the access road over the easement on the
Copeland property, but place restrictions on the number of
truckloads entering or exiting Route 106/156, depending on the
condition of the access road.

Second, the relevant conditional zoning
statutes and ordinance provisions do not require that
"off-site" proffers be confined to properties having
the same zoning classification as the property that is the
subject of the rezoning. Code ? 15.2-2297 and Charles City
County Ordinance ? 13.1-2, which contain the same
substantive provisions, permit proffered conditions as part of a
rezoning subject to the specific requirements stated in those
provisions.

We next conclude that the trial court did not
err in dismissing Count V of the second amended bill of
complaint, which alleged that the rezoning action constituted
illegal spot zoning. Count V also alleged that as part of the
rezoning, Weanack agreed through proffers to send all the waste
transported into its facility to the County’s landfill "for
the exclusive revenues of the County." Finally, Count V
alleged that the purpose of the rezoning was "to serve the
special financial interests of Weanack and the County."

Illegal spot zoning occurs when the purpose of
a zoning ordinance or rezoning amendment is solely to serve the
private interests of one or more landowners, rather than to
further a locality’s welfare as part of an overall zoning plan
that may include a concurrent benefit to private interests. Barrick
v. Board of Supervisors
, 239 Va. at 632-33, 391 S.E.2d at
320; Board of Supervisors v. Fralin & Waldron, Inc.,
222 Va. at 226, 278 S.E.2d at 863-64; Wilhelm v. Morgan,
208 Va. 398, 403-04, 157 S.E.2d 920, 924 (1967). The trial court
properly dismissed the plaintiffs’ claim in Count V because it
alleged that the purpose of the rezoning was to benefit the
interests of the County, as well as the interests of a private
landowner.

For these reasons, we will affirm the portion
of the trial court’s judgment dismissing Counts II and V of the
second amended bill of complaint. We will reverse the portion of
the trial court’s judgment dismissing Count I and remand Count I
to the trial court for a trial on the merits consistent with the
principles expressed in this opinion.

Affirmed in part, reversed in part and
remanded.

 

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

[2]Counts III, IV, and VI of the second amended bill of
complaint are not at issue in this appeal.

[3] Since the parties agree that the
Board adopted the proposed 1998 Comprehensive Plan, we do not
consider the differences in the provisions of the 1991 and 1998
Plans because, at a trial on remand, the court may consider the
1998 Comprehensive Plan. See Barrick v. Board of
Supervisors
, 239 Va. 628, 635, 391 S.E.2d 318, 322 (1990).

 

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