Opinion
In Chancery No. 03ZOA000-00
05-19-2005
In Re: Zoning Ordinance Amendments Enacted by the Board of Supervisors of Loudoun County on January 6, 2003 (Consolidated Cases)
John H. Foote, Esquire
4310 Prince William Parkway, Suite 300
Prince William, VA 22192 Stephen M. Sayers, Esquire
1751 Pinnacle Drive, Suite 1700
McLean, VA 22102 John R. Roberts, Esquire
1 Harrison Street, SE, 5 floor
Leesburg, VA 20177-7000 Randall T. Greehan, Esquire
1925 Isaac Newton Square, Suite 250
Reston, VA 20190 Phillip C. Strother, Esquire
15 East Franklin Street
Richmond, VA 23219 Gentlemen:
The Court last wrote to counsel on April 19, 2003. In that letter, the Court set out its finding concerning how the mandate from the Virginia Supreme Court would be implemented. Thus, counsel for the Board of Supervisors (the Board) was instructed to submit his draft Decree, properly endorsed, for entry by the Court. In doing so, the Court recognized the appropriateness of such action in the following words:
[t]he Court will enter the Decree tendered by the Board of Supervisors. It reflects the distinction drawn between the text (Conservation Design Policies) and Zoning Map (AR-1 and AR-2 districts) affected by the failure of the Board of Supervisors to advertise in accordance with the statutory mandate. Va. Code Ann. § 15.2-2204 (A); Glazebrook v. Board of Supervisors, 266 Va. 550 (2003). The proposed Decree properly addresses the impact of the decision on the zoning of the affected properties. That is, having been declared void ab initio, any attempt by the Board of Supervisors to change or avoid the existing Zoning Map designations of the affected parcels was ineffectual and the properties will remain zoned to the districts to which they were mapped prior to the enactment of the Zoning Ordinance Amendments on January 6, 2003.
Having heard nothing from counsel concerning the requested Decree, the Court instructed its clerk to make inquiry concerning its whereabouts. In response to that inquiry, the Court received an endorsed Decree as well as a Motion to Reconsider filed by the Citizen Landowners Interveners (Interveners). The Motion to Reconsider suggests nothing that the Court has not already maturely considered, or that would militate a differing result from that already enunciated. Further argument is neither necessary nor warranted.
Accordingly, the Court asks that the County Attorney prepare a supplemental Decree that denies the Motion to Reconsider. Concurrently with the mailing of this letter opinion, the Decree reflecting the Court's earlier letter opinion has been entered.
However, what the Court deems as the Interveners' continued misplaced reliance on Board of Supervisors v. Rowe, 216 Va. 128 (1975), as applied to the instant case, warrants further comment.
Thus far, the Court has not addressed the issue of whether the zoning ordinance amendments represent an arbitrary and capricious exercise of the legislative function of local government as applied to the property of any one or more of the individual complainants. These are substantive issues unrelated to the myriad of procedural questions addressed thus far by this Court and by the Supreme Court of Virginia.
The Supreme Court of Virginia reversed in part and affirmed in part the findings of this Court relative to these procedural issues. Most significant of these was the finding that the notice precedent to adoption of the Map Amendments, rezoning western Loudon to AR-1 and AR-2 districts, failed to meet the requirements of particularity specified by the General Assembly. Because the Board failed to provide such notice, it failed to acquire the jurisdiction or power to act. In other words, the issue presented today is not whether the Board acted reasonably in providing for such districts, but whether the Board could act upon such changes in the first instance.
Any legislative act of the Board, relative to the failure to follow statutorily mandated procedures, is invalid not only from when it became law, but from the time it was first advertised for public comment. Thus, attempts to amend are said to be void ab initio, or from the inception.
Contrariwise, the issues in Board of Supervisors v. Rowe, 216 Va. at 128, involved challenges to the substance of the zoning amendments and the appropriate response to the invalidation of such substantive provisions on appeal. As previously noted, the Court has not, and will not, review the effect of the amendments on individual property owners until the Board has obtained the power to act. The Board does so only by following the necessary steps outlined by the General Assembly to exercise the power to control the use and development of land.
The Commonwealth of Virginia adheres to the Dillon Rule limiting the exercise of legislative power by local government.
In Virginia the powers of boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication… This rule is a corollary to Dillon's Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable.
Board of Supervisors v. Horne, 216 Va. 113, 117 (1975) (authorities omitted).
When, as in the instant case, the General Assembly proscribes conditions precedent to the exercise of the power by a locality, the power must be exercised in the manner designated by the legislature. City of Richmond v. Board of Supervisors of Henrico Co., 100 Va. 679 (1958); Town of Vinton, et.al. v. Falcun Corp., 226 Va. 62 (1983).
Statutory notice serves, "[t]o generate informed public participation by providing citizens with information about the context of the proposed amendments and the forum for debate concerning those amendments." Glazebrook, 266 Va. at 555. Publication requirements involve substantive rights of the public to be heard on matters affecting constitutionally protected property interests. King v. Hening et. al., 203 Va. 582, 586 (1962); Portsmouth v. Norfolk, 198 Va. 247 (1956); Continental Baking Co. et.al. v. City of Charlottesville et.al., 202 Va. 798 (1961). In addition, they help to define the limits within which affected landowners may challenge the reasonableness of legislative acts. Thus, a responsible, responsive, and participatory government depends on the adequacy of the notice provided.
If the amendments were adopted without the required notice, they are considered void ab initio, and therefore, by definition are void from the outset. The resulting impact on existing zoning is as if no government action had taken place at all. In other words, the action taken by the Board to change the existing Zoning Map from an A-3 classification to the AR-1 and AR-2 classification was ineffectual. Town of Jonesville v. Powell Valley Village Ltd., 254 Va. 70 (1997); (distinguishing Rowe, holding that there was no prior zoning ordinance, so the effect, of the current ordinance being found void ab initio, was to return the property to its previous zoned status). See City of Alexandria v. Potomac Green Associates, 245 Va. 371 (1993).
Citizen Landowners place great emphasis on the fact that the Complainants filed a Supplemental Brief on April 19, 2005. That brief was received in Chambers after the Court finalized its letter opinion of the same date. In any event, the Court has now had access to, and reviewed, the written memorandum and oral arguments of all parties.
While not binding on this Court, the decisions from other jurisdictions lend support to the instant decision. Fedus v. Zoning and Planning Commission, et. al., 2005 Conn. Super. Lexis 153 (Conn. Super. Ct. January 19, 2005); Town of Islip v. Paliotti, 196 A.D. 2d 648, 601 N.Y.S. 2d 926, (1993); Mahaffey v Forsyth County, et.al., 99 N.C. App. 676, 394 S.E. 2d 203 (1990); Stassi v. Ransom Township Zoning Hearing Bd., 54 Pa. D. & C. 4 303 (2001).
The decision of the Virginia Supreme Court involves the adequacy of the public notice given to the property owners who sought to challenge it through the process of judicial review. Notice and the opportunity to be heard are core concepts of both judicial and legislative due process. A citizen's right to make known his or her opinions in matters affecting development-based expectations and the use of property have been identified by the highest legislative and judicial branches of the Commonwealth as essential to the exercise of power to zone by local legislative bodies. While this Court reached a different conclusion with respect to the adequacy of notice, the implications of the absence of such notice and the subsequent legislative process in Virginia are clear.
From the vantage point of the concerned citizen landowners, there seems to be little difference between those persons who, lacking notice, wake up to find the Board has limited the way in which their property may be used and others, who because their neighbor lacked such notice, rise to a new day only to find the Court has restrained them from using their property until such time as the Board gives such notice. In the case of the former, the result is attendant to the impermissible legislative action that the Virginia Supreme Court has prohibited. In the case of the latter, the result would flow from the proposal relied upon by the Interveners. In either event, the failure to give notice has affected significantly the substantive property rights of individuals. Under such circumstances, equity would compel that the development-based expectations of the property owner are that he or she is permitted to use his or her property consistent with common law rules of conduct and published land-use regulations.
The Motion to Reconsider filed by the Citizens Landowners is denied. Mr. Roberts may draw a Decree consistent with this opinion. Pursuant to Va. Code Ann. § 8.01-267.8, the Decree may provide that it involves a controlling question of law that there is substantial ground for difference of opinion; and that immediate appeal may advance the termination of the matter as to the question raised by the Interveners, should the parties be so inclined. The Court will enter a separate order consistent with this opinion, to which counsel may not their exception. I am, this date, entering the Decree previously submitted.
This ORDER IS FINAL for purposes of an interlocutory appeal. However, the Decree shall not be stayed pending such appeal.
Very truly yours,
Thomas D. Horne, Judge