COA affirms planning commission’s authority

A local planning commission gave statutorily compliant notice for a hearing and had the authority to continue the hearing and later recommend approval of a rezoning application, the Court of Appeals of Virginia has ruled.

ABoone Real Estate filed an application to rezone several lots to mixed-use planned unit development (MXPUD) in Roanoke with the intent of building 24 townhomes.

The Roanoke Planning Commission held a June 2024 hearing in which it began to consider the rezoning application but then continued the hearing. The planning commission later recommended approval of the rezoning application when the hearing was resumed a month later.

Several neighbors filed suit, alleging the planning commission exceeded its authority by continuing the public hearing for later consideration.

The trial court sustained the city’s demurrer, and the neighbors appealed.

“Because the Planning Commission gave statutorily compliant notice for the hearing that began at its regularly scheduled June 10, 2024, meeting, we find that the Planning Commission had authority to continue the hearing and to later recommend approval of the rezoning application when the hearing was completed at its July meeting,” Judge Lisa M. Lorish wrote.

Judge Mary Grace O’Brien and Senior Judge Robert J. Humphreys joined the 30-page opinion in Garrett v. Roanoke City Council (VLW 026-7-224).

The defendants were represented by James J. O’Keefe of the Roanoke City Attorney’s Office, who did not respond to a request for comment. Neither did Roanoke attorney Carrol M. Ching of Fishwick & Associates, who represented the neighbors.

Application to rezone

ABoone’s application sought to rezone roughly 3.5 acres of land located along Medmont Circle from R-12, residential single family, to MXPUD, in order to build 24 townhouses.

The Roanoke Planning Commission first placed the application on the agenda for its February 2024 meeting. Before the meeting, ABoone amended its initial application. At that meeting, two of the neighbors were present and advised that their comments would be held until the
June 2024 meeting.

ABoone amended the initial application again in May 2024, and the planning commission provided public hearing notices in the June 3 and June 10 editions of The
Roanoke Times. At the June meeting, ABoone again requested a continuance, explaining that they were working “to come up with a better plan.”

After the planning commission unanimously voted to grant the continuance, the chair allowed the public to speak. Four people spoke in opposition to the application. The planning commission then stated that the public hearing portion of the matter remained open until the July meeting.

ABoone amended the application again on June 25, increasing the tree canopy by 5%, clarifying setbacks, revising the phrasing of the description of the buildings’ siding and adding renderings of the townhomes’ exteriors.

The planning commission published public hearing notices in advance of the July meeting. At that meeting, representatives from ABoone presented information about the application and more than a dozen members of the public spoke, as well as city staff. Some expressed concerns about the project (including traffic and stormwater impacts), while city staff expressed support for the application, finding it to be consistent with the general principles of the city’s comprehensive plan, the greater neighborhood plan and the zoning ordinance.

The planning commission voted unanimously to recommend the application, and Roanoke City Council later approved the application.

Seeking declaratory judgment and injunctive relief, the neighbors sued ABoone and the other developers, as well as
Roanoke City Council.

The trial court sustained the defendants’ demurrer and dismissed the complaint with prejudice, and the neighbors appealed.

Implied authority

A planning commission has inherent authority to reasonably continue a hearing, the court said, based on both the statutory framework and common sense, refusing to limit a continuation to instances where “weather or other conditions” make it “hazardous for members to attend the meeting,” as argued by the neighbors.

The powers expressly granted by state law to make a recommendation to the council about whether an application should be approved or denied, as well as the authority to exercise general supervision of the administration of its affairs and prescribe rules pertaining to its hearings, imply that the planning commission can choose when to schedule discussion about a particular project.

“It is also implied that the Planning Commission can choose to reschedule discussion about a particular project, or to continue discussion over multiple meetings,” the court wrote. “We cannot find any language in the statute that ‘is so strong as to preclude’ an implied, reasonably exercised authority to continue the decision on a pending application to a later meeting.

“Indeed, the Planning Commission’s statutory duty to make recommendations on pending applications would be frustrated if the Planning Commission could not set its own agendas and move matters from one meeting to another to account for factors like the availability of the parties involved, developments in the application, or outside events.”

Council decision affirmed

Nor was the planning commission required to readvertise that consideration of the application would continue at the July meeting, the court determined.

While the neighbors were correct that the statute requires all hearings to be advertised in advance, Va. Code § 15.2-2204(A) only requires advertisement of the time and place of the meeting at which the hearing on a matter will begin, the court explained, which was consistent with the rest of the statutory scheme.

The fact that ABoone submitted an amended application between the June and July meetings didn’t change the analysis, the court added, as the alterations to the application were de minimis and left it “substantially the same.”

Finally, the court affirmed the council’s decision, finding it reasonable and within its authority. The plain language of the
MXPUD ordinance does not suggest that any objective or purpose must be met, the court said, and the statutory definitions of mixed-use and planned-unit developments do not require that a particular development contain mixed residential and commercial sites.

The council’s decision was fairly debatable, the court added, with evidence of reasonableness. ABoone’s townhomes were promoted
as a more affordable single-family home option for the area housing market, and the planning commission’s report recommending approval of the application discussed aspects of rezoning including stormwater, traffic and tree canopy requirements, supporting the conclusion that the council was aware of and considered the various statutory factors, and the report detailed the ways in which the new project would comply with the neighborhood and comprehensive plans.

“[A]s our appellate courts have repeatedly stated, whether rezoning complies with the comprehensive plan is ultimately a matter within the local body’s discretion,” the court concluded.

Garrett v. Roanoke City Council

• Garrett v. Roanoke City Council

ISSUE           Did a local planning commission give statutorily compliant notice for a hearing and have the authority to continue the hearing and later recommend approval of a rezoning application when the hearing was resumed?

Answer      Yes (Court of Appeals of Virginia)

Attorneys  Carrol M. Ching, Fishwick & Associates, Roanoke (plaintiffs)
James J. O’Keeffe, Office of the City Attorney, Roanoke (defendants)