Opinion
50448 Record No. 942142
Decided: November 3, 1995
Present: All the Justices
The trial court properly held that the board of supervisors of a county violated Code Sec. 15.1-491.2:1 when it demanded a "voluntary" cash proffer from a zoning applicant as a condition for rezoning, and that judgment is affirmed.
Zoning — Rezoning Applications — Mandatory Proffers — Cash Payments — Code Sec. 15.1-491.2:1
A developer filed a petition for declaratory judgment against a county board of supervisors, seeking a declaration that the board had unlawfully denied its zoning application and that it had unlawfully conditioned the rezoning upon its proffer of a cash payment. After hearing the evidence ore tenus, the trial court found that the board did act unlawfully by conditioning the rezoning upon the proffer of a cash payment and directed the board to reconsider the rezoning application in the light of the court's finding. The board appeals.
1. If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body, but when an enabling statute is clear and unambiguous, its intent is determined from the plain meaning of the words used, and, in that event, neither rules of construction nor extrinsic evidence may be employed.
2. The plain meaning of Code Sec. 15.1-491.2:1 is that a county is not empowered to require a specified proffer as a condition precedent to a rezoning; the statute clearly states that proffers of conditions by a zoning applicant must be made voluntarily.
3. Since there was ample evidentiary support for the trial court's finding that the sole reason for denial of the rezoning request was the developer's failure to make a specified cash proffer for each lot, the proffer constituted a condition precedent and was not voluntary within the meaning of the statute, and thus the board imposed an unlawful condition on the developer.
Appeal from a judgment of the Circuit Court of Powhatan County. Hon. Thomas V. Warren, judge presiding.
Affirmed and remanded.
John F. Rick for appellant.
Frank N. Cowan (Cowan Owen, on brief), for appellee.
Pursuant to Virginia's conditional zoning statutes, Code Sec. 15.1-491.1 et seq., a locality is empowered to enact a zoning ordinance that "may include and provide for the voluntary proffering . . . by [a zoning applicant] of reasonable conditions," Code Sections 15.1-491.2 and -491.2:1, "for the protection of the community," Code Sec. 15.1-491.1. The dispositive issue in this appeal is whether, under the facts and circumstances of this case, the demand of a cash proffer by the Board of Supervisors of Powhatan County (the Board) violates Code Sec. 15.1-491.2:1.
I
Reed's Landing Corporation (the Developer) filed a petition for declaratory judgment against the Board, seeking a declaration that the Board unlawfully denied the Developer's rezoning application. The Developer alleged that the Board unlawfully conditioned the rezoning upon a proffer of a cash payment.
After hearing the evidence ore tenus, the trial court found that the Board did act unlawfully by conditioning the rezoning upon the proffer of a cash payment and directed the Board to reconsider the Developer's rezoning application in the light of the court's finding. The Board appeals.
II
According to well-established principles of law, we must view the evidence in the light most favorable to the Developer, the prevailing party at trial. In 1983, Powhatan County enacted its zoning ordinance. Article 18, entitled "CONDITIONAL ZONING," provides, in pertinent part, that a zoning applicant may request conditional zoning "by voluntary proffer . . . of reasonable conditions." Article 18 also provides that the rezoning must give rise to the need for the conditions and that the conditions must have a reasonable relation to the rezoning.
On June 30, 1993, the Developer sought the rezoning of approximately 233 acres of land from an agricultural (A-1) zoning classification to a single-family residential (R-1) zoning classification. The Developer's rezoning application met all requirements of the County's zoning ordinance and for an R-1 classification.
At the public hearing on the rezoning application, conducted by the Powhatan County Planning Commission on August 3, 1993, no one appeared in opposition to the Developer's request. The planning staff recommended approval of the rezoning, and the planning commission later unanimously recommended its approval. On August 9, 1993, however, the Board adopted "proffer guidelines" which set forth a "recommended" proffer of $2,439 per lot "to help defray costs of capital facilities related to new development."
The Developer's rezoning application first came before the Board on September 13, 1993. At that time, the Developer proffered a cash payment "under protest," but the Board deferred the matter to its October 11, 1993 meeting.
At the October 11, 1993 Board meeting and public hearing on the Developer's rezoning application, no member of the public spoke in opposition to the rezoning request. It was apparent, however, that the Board would not approve the rezoning request unless the Developer agreed to pay $2,439 per lot, even though the Developer's counsel asserted that the cash proffer demand was illegal. The Developer refused to yield to the Board's demand, and the Board denied the rezoning request.
At trial, the County's Director of the Department of Planning and Community Development testified that a cash proffer of $2,439 per lot was "expected" prior to the approval of residential rezoning. He also testified that, since the Board adopted the proffer guidelines in August 1993, virtually no R-1 rezonings had been approved without the cash proffer.
In his letter opinion, the trial judge recognized that Code Sec. 15.1-491.2:1 enabled the Board to accept "voluntary" proffers from applicants requesting a zoning change. He found, however, that "the sole reason for denial of [the Developer's] request was its failure or refusal to proffer $2439 per lot." The judge concluded, therefore, that "[t]he County is clearly imposing an impact fee not authorized by statute and which it is without power to impose."
III
Boards of supervisors, like other local governing bodies, have only those powers that the General Assembly, expressly or by necessary implication, confers upon them. Board of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975); Gordon v. Fairfax County, 207 Va. 827, 832, 153 S.E.2d 270, 274 (1967); Board of Supervisors v. Corbett, 206 Va. 167, 174, 142 S.E.2d 504, 509 (1965). If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body. City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 79-80, 387 S.E.2d 471, 473 (1990); Winchester v. Redmond, 93 Va. 711, 714, 25 S.E. 1001, 1002 (1896). However, when an enabling statute is clear and unambiguous, its intent is determined from the plain meaning of the words used, and, in that event, neither rules of construction nor extrinsic evidence may be employed. Confrere Club of Richmond, 239 Va. at 80, 387 S.E.2d at 473; Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987).
A plain reading of Code Sec. 15.1-491.2:1 in the light of the foregoing principles of law demonstrates that a county is not empowered to require a specified proffer as a condition precedent to a rezoning. The statute clearly states that proffers of conditions by a zoning applicant must be made voluntarily.
In the present case, the trial court found that the sole reason the Board denied the rezoning request was the Developer's refusal to proffer $2,439 per lot, a finding fully supported by the evidence. Therefore, under the facts presented, the proffer constituted a condition precedent and was not voluntary within the meaning of the statute. Consequently, we hold, as did the trial court, that the Board imposed an unlawful condition on the Developer.
It is interesting to note that, since the enactment of Code Sec. 15.1-491.2:1, the General Assembly has rejected all efforts to grant to localities greater power to charge landowners and developers with the capital costs associated with residential growth. See, e.g., S.B. 788, 1989 Sess. (no action taken); S.B. 340, 1992 Sess. (passed by Senate, but stricken from House docket by Committee on Counties, Cities and Towns in 1993); H.B. 1138, 1992 Sess. (passed by indefinitely by Committee on Counties, Cities and Towns); H.B. 2323, 1993 Sess. (passed by indefinitely by Committee on Counties, Cities and Towns).
IV
Accordingly, we will affirm the trial court's judgment and remand the case to the trial court with directions that it remand the matter to the Board for reconsideration of the Developer's rezoning application consistent with this opinion.
Affirmed and remanded.