Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant argues that a county’s approval of a plan to develop a daycare center violated appellant’s due process rights, there was no error when the board of supervisors delegated the authority to approve the plan to the planning director who evaluated the plan.
Statement of the case
“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.”
Approval not ‘legislative act’
“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. …
“Unlike zoning ordinances, the approval of a site plan, plan of development, or building permit does not require action by the governing body and is not a legislative act. The Code requires each locality to ‘create a local planning commission in order to promote the orderly development of the locality and its environs.’ …
“But the planning commission serves ‘primarily in an advisory capacity to the governing bodies.’ … The Code expressly allows a plan of development to be approved by the ‘local planning commission or other agent.’ … (emphasis added).
“Before Emerson’s appointment as that agent under the April 2020 COVID-19 ordinance, the Henrico County Code permitted a plan of development to be approved by ‘[t]he planning commission or the board of supervisors.’ …
“The county code has since been amended to make permanent the planning director’s appointment to approve plans of development. …
“[T]he review of a plan of development involves no legislative judgments. The review determines whether the plan complies with the applicable zoning ordinance and any other legal requirements imposed by the locality.
“The Code’s structure reflects this distinction. While the statutes governing zoning are set forth in Article 7 (entitled ‘Zoning’), in Chapter 22 of Title 15.2, the rules governing the submission and review of a plan of development are set forth in Article 6, entitled ‘Land Subdivision and Development.’
“The separation of Article 6 from Article 7 reflects the ‘significant distinction’ between zoning, a legislative function, and site-plan and plan-of-development review, a ministerial function. …
“KSS elides the ministerial review and approval of a plan of development with the legislative authority of the governing body to enact zoning ordinances.
“For instance, the amended complaint alleged that Henrico County’s approval of the Childcare Plan of Development ‘changed the zoning’ of the 6.28-acre office-park parcel. … Not so. The approval of a plan of development represents an administrative finding that the plan follows the applicable zoning. It does not ‘change’ the zoning.”
No due process violation
“Count II of the amended complaint alleged that the County Defendants violated KSS’s procedural-due-process rights under the federal and Virginia constitutions.
“KSS begins with the premise that Emerson’s approval of the Childcare Plan of Development impaired KSS’s property interests.
“KSS then claims that Emerson was not a ‘fair and impartial decisionmaker’ because he served in dual roles: first in ‘an executive advocacy capacity before the Planning Commission,’ and then in a ‘decision making role to grant final approval [on behalf] of the Board of Supervisors.’ …
“The amended complaint failed to allege facts that, even fairly construed in KSS’s favor, show that Emerson was biased, facts that would make it reasonable to infer that Emerson was biased, or facts showing an unconstitutional risk of bias.
“KSS, for instance, did not allege facts showing actual bias. KSS argues that the plan-of-development approval process was structurally flawed because ‘Emerson played dual roles by promoting the 2020 POD [plan of development] and then approving the 2020 POD.’
“But alleged structural flaws stemming from the decisionmaker’s ‘institutional connection with the investigating agency’ cannot overcome the ‘presumption that public officials have acted correctly,’ absent ‘a showing of bias or improper conduct.’”
The trial court correctly granted the appellees’ demurrers.
KSS One, LLC v. Henrico County, et al., Record No. 0294-22-2, March 7, 2023. CAV (published opinion) (Raphael). From the Circuit Court of Henrico County (Taylor Jr.). S. Keith Barker for appellant. Ryan Murphy, Michael J. Rothermel for appellees, VLW 023-7-099, 15 pp.
