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Developer Wins Limited Declaratory Relief

Deborah Elkins//March 20, 2013

Developer Wins Limited Declaratory Relief

Deborah Elkins//March 20, 2013//

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In this dispute over a developer’s alternative plans to provide water and sewer service to a proposed development after the localities changed plans to share that responsibility, a Loudoun County Circuit Court orders limited declaratory relief and holds that a determination of rights regarding whether the tract may be developed with an Alternative Onsite System pursuant to Va. Code §§ 15.2-2157 and 32.1-172 in satisfaction of the proffer is proper in this case; however, requests that require the court to hypothesize theoretical land development plans are too speculative to warrant relief.

“Autumn Hill” is the name given to a 74.8-acre tract of land located adjacent to the town limits of the town of Purcellville. Autumn Hill was located in an area previously designated as subject to development in accordance with the Purcellville Urban Growth Management Plan (PUGAMP). PUGAMP was an expression of intent by the town of Purcellville and Loudoun County to share planning responsibilities for certain properties, like Autumn Hill, located in close proximity to the town. As a result of actions taken by the governing bodies of the town and the county, PUGAMP will, in all probability, be rescinded, leaving oversight of development to the singular decision of the county.

Plaintiff Brookfield Autumn Hill acquired the property in 2002. It is alleged plaintiff has, at considerable expense, sought to develop the property pursuant to the existing zoning on the tract. With the decision to rescind PUGAMP and the attendant refusal of the town to provide water and sewer to the site, plaintiff alludes to the impossibility confronting plaintiff to comply with the original zoning proffer conditioning development of the site in accordance with the water and sewer proffer.

Plaintiff contends it is entitled to proceed with development in accordance with the original rezoning, substituting an Alternative Onsite System given the refusal of the town to provide water and sewer to the site. Central to plaintiff’s argument are the provisions of Va. Code § 15.2-2157(c).

This court is now asked to decide, by way of declaratory relief, that the county may not prohibit the use of an Alternative Onsite System for water and sewer that has been approved by the Virginia Department of Health, and also, that Autumn Hill may be developed in accordance with the PDH-30 district of the 1972 Loudoun County Zoning Ordinance pursuant to Va. Code §§ 15.2-2157 and 32.1-172.

The uncertainty of whether the proffer or Va. Code § 15.2-2157(c) governs poses an impasse to the development of Autumn Hill. Plaintiffs ask the court to grant declaratory judgment as to future, unfiled land development applications, to enjoin the denial of future unfiled land development applications, to grant damages against the county even though no application or other request for permit has been submitted to or denied by the board, and to grant damages for a taking of plaintiffs’ property even though no land development application or other request for permit with respect to the property has been submitted to or denied by the board. Also, the proffer administrator and the board on appeal further enlarged the controversy when both expressly refrained from rendering an opinion in regard to whether the county believes that interpreting Code § 15. 2-2157(c) to permit the construction of an Alternative Onsite System in satisfaction of the proffer is outside of the authority of the proffer administrator pursuant to Code § 15.2-2299.

This court believes it is clear that plaintiff is not required to submit a development plan for approval before qualifying for declaratory relief. The court finds plaintiff has undertaken the necessary steps to warrant declaratory relief. Plaintiff hired engineers and other professionals, submitted applications and underwent an appeals process in order to begin developing the site. Plaintiff’s efforts demonstrate a continued interest in developing the site and fail to reach the speculative nature that the county contends. By granting declaratory relief, the court seeks to clarify the rights which each party reserves regarding the development of the site. As such, this court overrules the demurrer to count I.

The court finds count 2 remains too speculative as this count would enjoin the county and board from refusing to approve developmental plans that do not yet exist. Enjoining future hypothetical plans that plaintiff may or may not present to the board requires the type of speculation that is not permitted for this court to order an injunction.

The court further believes that count 3 suffers from a lack of certainty as damages are sought for a denial of plans not filed and property interests that are yet to be the objects of deprivation. Without the submission of a land development application, this court cannot find that plaintiff has exhausted the adequate and available administrative remedies available. The court also believes count 4 remains too speculative for the court to award damages and attorney’s fees under the assertion that the prohibition against constructing an Alternative Onside System constituted a taking without due process and just compensation. Without more, this court rejects the assertion that the site maintains no economic value in the absence of an Alternative Onsite System.

Brookfield Autumn Hill LLC v. County of Loudoun (Horne) No. 70901, March 5, 2013; Loudoun County Cir.Ct.; Thomas M. Lawson for plaintiff; Ronald J. Brown, Dep. County Att’y. VLW 013-8-020, 5 pp.

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