Opinion
CL-2009-6672 CL-2009-13240
04-07-2011
Michelle Coleman v. Board of Zoning Appeals of the City of Fairfax, et al. The Lamb Center v. City of Fairfax, et al.
Jeffrey K. Emrich Walsh, Colucci, Lubeley, Emrich John Wliburo McGuireWoods LLP Kevin F. X. DeTuris McGuireWoods LLP Patricia V. Fettman Robert T. Mitchell, Jr.
MARCUS P. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKCRT
RICHARD J. JAMBORSKY
JACK R. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL R. McWEENY
GAYLORD L. FINCH. JR.
STANLEY P. KLEIN
RETIRED JUDGES
April 7, 2011
Dear Counsel:
This matter comes before the Court on a writ of certiorari to entertain the City of Fairfax ("City") and Zoning Administrator Michelle D. Coleman's ("Zoning Administrator") appeal of three decisions of the Board of Zoning Appeals ("BZA"). After considering the oral arguments of counsel and reviewing the applicable legal authority, I find that the BZA was plainly wrong and applied incorrect principles of law in reversing the Zoning Administrator. I hereby reverse the BZA's decision. Further. I find that the Zoning Ordinance at issue in this case is valid. Therefore, I deny The Lamb Center's request for declaratory judgment and injunctive relief.
BACKGROUND
In 1992, The Lamb Center received a non-residential use permit ("Non-RUP") to operate a counseling center on Lee Highway in Fairfax City. Defendant Roger Young is the record owner of The Lamb Center. In 2001, The Lamb Center relocated to Old Lee Highway and obtained another Non-RUP to operate the counseling center at the new address. Operating a counseling center is a permissible use in the locations, both of which are zoned C-2.
. On June 25, 2009, this Court granted the petition. Pursuant to the Court's order, the BZA furnished copies of the underlying proceedings on August 17, 2009. Subsequently, on August 20, 2009, the BZA filed its response to the Petition for writ of certiorari. The Lamb Center filed its response brief on November 25, 2009.
In 2006, the Zoning Administrator issued a Determination that The Lamb Center engaged in eleemosynary activity—a use prohibited in a C-2 area. Specifically, the Administrator determined that The Lamb Center provided laundry service, personal care facilities and meals to its clients. The Administrator concluded that these services-were not accessory to The Lamb Center's operation and, therefore, not among the permitted uses. The Administrator issued a Notice of Violation in connection with the Determination. The Administrator issued another Notice of Violation on the ground that The Lamb Center did not have a permit to operate a school of special instruction. The Lamb Center appealed the Determination and the Notices. The BZA heard the appeal on April 7, 2009, and reversed the Administrator's decisions.
On May 6, 2009, the Administrator and the City petitioned this Court for a writ of certiorari
On September 11, 2009, The Lamb Center filed a Complaint for Declaratory Judgment and Injunctive Relief requesting that this Court invalidate the applicable zoning ordinance provisions and enjoin the City and the Administrator from interfering with The Lamb Center's operation.
On December 1, 2009, this Court consolidated the case initiated by The Lamb Center and the Petition for writ of certiorari. Both cases came before the Court on February 2, 2011, for a joint hearing on the City and Administrator's appeal of the BZA decision and The Lamb Center's Complaint for Declaratory Judgment and Injunctive Relief. The Court took both matters under advisement.
ANALYSIS
THE APPEAL
The Court first considers the City and Zoning Administrator's appeal of the BZA decision. On appeal, the circuit court must afford the BZA decision a presumption of correctness. Va. Code Ann. §15.2-2314 (2011). The appellant may rebut that presumption by proving by a preponderance of the evidence that the BZA reached an incorrect decision. Id. When the issue on appeal is a question of law, the court must decide whether the BZA applied improper principles of law or whether the BZA's decision was plainly wrong. Bd. Of Supervisors v. Bd. of Zoning Appeals, 271 Va. 336, 348, 626 S.E.2d 374, 382 (2006).
The appellants raise the following arguments: (1) one of the BZA members, Mr. Matthews, improperly relied on equitable considerations in reaching his decision; (2) the BZA failed to accord the Zoning Administrator's determination the presumption of correctness, as required by statute; and (3) the BZA incorrectly concluded that The Lamb Center's activities constituted a permitted use. I address each of these arguments below.
a. BZA Member Matthews's Conduct
The City and Zoning Administrator argue that BZA member Matthews erroneously relied upon impermissible equitable considerations in reaching his decision. Specifically, the appellants contend that Mr. Matthews concluded that The Lamb Center had engaged in its activities for such a long time as to make any restrictions on uses irrelevant.
The authority of the BZA is prescribed by statute. Lake George Corp. v. Standing, 211 Va. 733, 735, 180 S.E.2d 522, 523 (1971). Generally, the BZA may not consider equitable principles in reaching its decision. Bd. of Supervisors, 271 Va,at351. However, equitable considerations are permitted when the issue involves issuance of special use permits. Id; Foster v. Geller, 248 Va. 563, 570, 449 S.E.2d 802, 807 (1994); Matthews v. Bd. of Zoning Appeals, 218 Va 270, 274, 237 S.E.2d 128, 130 (1977). The Code does authorize the BZA, however, to consider the purpose and intent of an ordinance in rendering its decision. Va. Code Ann. §15.2-2309(1) (2011).
In Foster, the Director of the Department of Planning and Community Development of the City of Alexandria allowed Geller to construct a residence on a particular lot, even though that lot constituted a substandard lot not suitable for the desired construction without a special use permit Foster, 248 Va. at 567-568. The Director based his decision on the premise that the fixed point measurement, which serves to determine whether a lot is standard, had not been consistently applied. Id. at 565. The Supreme Court agreed with the BZA and the circuit court that the Director could not use equitable reasons to circumvent compliance with the special use permit requirement. Id. at 570.
In the present case, the appellants argue there are three statements Mr. Matthews made that prove he used equitable considerations in reversing the Zoning Administrator. These statements are: (1) "I don't think [The Lamb Center's] services haven't [sic] changed in a long time;" (2) "I mean, again, I think to a large degree, it's almost irrelevant" (referring to whether or not The Lamb Center's activity was eleemosynary); and (3) "Well, such as it is, the record suggests an oral understanding between a minimum of two people" (in response to a statement that the record did not indicate that the challenged services were "part of the deal").
Thus, the question becomes whether Mr. Matthews's statements indicate that he used equitable considerations in deciding to reverse the Zoning Administrator's decisions. The Law Dictionary defines "equitable" as, among other things, "pertaining to preventive and remedial justice which is appropriate under the unique facts of the problem case, and which is rendered by a court, in contradistinction to common-law justice." The Law Dictionary (2002).
Mr. Matthews's statements indicate that he did use equitable considerations to arrive at the decision to reverse the Zoning Administrator. The fact that The Lamb Center may have exercised a certain activity for years does not bring that activity into compliance with the appropriate zoning ordinance. Therefore, his statements, even if they reflect "preventive and remedial" justice under the circumstances, are not based in law. Furthermore, like the Director in Foster, Mr. Matthews did not have the authority to apply equitable considerations, such as the duration of the activity or the fact that there was an "oral understanding" of its propriety, to excuse strict compliance with the ordinance. I find that the BZA improperly applied equitable principles of law in reaching its decision.
b. The BZA's Review of the Zoning Administrator's Decision
Next, the appellants contend that the BZA erred in failing to accord a presumption of correctness to the Zoning Administrator's decision that The Lamb Center was an eleemosynary institution. Specifically, the appellants argue that the BZA did not afford the necessary deference to the Zoning Administrator's findings and further failed to apply the plain meaning of the ordinance, which prohibits eleemosynary uses in the C-2 district.
It is true, as the appellants point out, that matters involving "judgment calls" as to ordinance interpretation are best resolved by the officials enforcing the ordinance. Trustees of the Christ and St. Luke's Episcopal Church v. Bd. of Zoning Appeals of Norfolk, 273 Va 375, 381, 641 S.E.2d 104,107 (2007). However, there is no authority, contrary to what the appellants suggest, which requires the BZA to afford deference to the zoning official on appeal. Higgs v. Kirkbride, 258 Va. 567, 575, 522 S.E.2d 861, 865 n.4 (1999).
The BZA has the power to reverse the zoning official's decision. Va. Code Ann. §15.2-2312 (2011). In exercising this power, the BZA need not defer to the zoning administraior- See Higgs, 258 Va. at 575 n.4 ("It is an appropriate function of the board to reverse a decision of a zoning official where the board determines that the decision is contrary to the plain meaning of the ordinance and the legislative intent expressed therein. The board owes no deference to the zoning official in that circumstance."). The BZA in this case exercised its authority under §15.2-2312 and reversed the Zoning Administrator. I find that the BZA was not required to afford any deference to the Administrator.
c. Nature of The Lamb Center's Activities
Lastly, the appellants maintain that the BZA erred in reversing the Zoning Administrator's determination that The Lamb Center was an eleemosynary institution engaged in activities not contemplated by the City ordinance.
Generally, zoning ordinances are either inclusive or exclusive. An inclusive ordinance allows only the uses specifically named therein. An exclusive ordinance lists the prohibited uses and permits all others. Bd. of Supervisors of Madison County v. Gaffney, 244 Va, 545, 549-50, 422 S.E.2d 760, 763 (1992).
The Lamb Center is located in the C-2 retail commercial district of Fairfax City. The C-2 district serves "to provide areas for office and general business establishments and uses accessory or complementary thereto." § 110-31(b)(12) (2011). Section 110-781 of the City Municipal Code lists the uses permitted in the C-2 district. Section 110-782 enumerates the uses permitted with a special use permit. Neither section 110-781 nor section 110-782 includes eleemosynary uses. In fact, the only districts where the Code explicitly permits eleemosynary uses are R-3 Residential District (Sec. 110-512(15)), CPD Commercial Planned Development District (Sec. 110-70 l(2)(i)) and P-D Planned Development District (Sec. 110-631 (2)(i)).
It appears from the foregoing that the City ordinance is an inclusive one because it lists the permitted uses for each of the City's districts. It necessarily follows then, that a use not listed for a particular district is not permitted in that district. Because eleemosynary uses are not listed among the uses permitted in the C-2 district, they are not permitted there.
The next question is whether The Lamb Center engaged in eleemosynary uses. The Code defines an eleemosynary institution as "an establishment by a private nonprofit organization which is not operated for the purpose of carrying a trade or business, no part of the net earnings of which inures to the benefit of any member of such organization, and which is operated exclusively for charitable or benevolent purposes." §110-4 (2011).
The allegedly eleemosynary uses at issue in this case were the food, showers, laundry and hair cuts The Lamb Center provided to the people it counseled. I find that these services are benevolent and charitable and, by definition, eleemosynary, because they are furnished for the benefit of the attendees without reimbursement.
The inquiry, however, does not end here. Pursuant to §110-31(b)(12), the Code implicitly allows uses accessory or complementary to the uses permitted in the C-2 district. Thus, if this Court finds that the non-conforming services The Lamb Center provides were accessory or complementary to its counseling activities, these services should be deemed proper.
5
In the context of zoning, accessory uses are those "customarily incidental" to the main use. Wiley v. County of Hanover, 209 Va. 153, 157, 163 S.E.2d 160, 163 (1968); see also 83 Am. Jur. 2d Zoning and Planning §570 (2010) ("An accessory use is a use subordinate to the principal use of land, or of a building on a lot, and customarily incidental to the principal use."). Generally, to determine if a use is accessory, the court must consider whether it is a use that is customarily associated with the primary use. 83 Am. Jur. 2d Zoning and Planning §570 (2010). In the absence of a direct prohibition in the ordinance against a particular use, what is a permitted accessory use depends on the specific details of each case. Id.; see also Wiley, 209 Va. at 157. The majority of Virginia cases that address whether a particular nonconforming use is accessory rely on the relevant ordinance. The Code in this case does not define either accessory or complementary use.
Courts frequently decide whether a particular use is accessory to the principal use. See County Comm'rs of Carroll County v, Zent, 86 Md. App. 745, 587 A.2d 1205 (1991) (storage of decommissioned trucks as sources of parts accessory to milk trucking); Laurel Lawn Cemetery Ass'n v. Zoning Bd. of Adjustment of Tp. Of Upper Deerfield, 226 N.J. Super. 649, 545 A.2d 253 (Law. Div. 1988) (a crematorium accessory to a cemetery); James H. Maloy, Inc. v. Town Bd. of Town of Guilder land, 92 A.D.2d 1056, 461 N.Y.S.2d 592 (3d Dep't 1983) (stone craning accessory to a quarry); State v. P. T. & L. Constr. Co., Inc., 11 N.J. 20, 389 A.2d 448 (1978) (a heliport accessory to a construction business); Hardy v. Zoning Bd. of Review of Town of Coventry, 119 R.I. 533, 382 A.2d 520 (1977) (a toilet accessory to a camp ground); Wiley, 209 Va. at 157 (a pigeon house "customarily incidental" to a family dwelling); Gross v. Zoning Bd. of Adjustment of City of Philadelphia, 424 Pa. 603, 227 A.2d 824 (1967) (a restaurant accessory to a bowling alley). But see Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Chatham Tp., 202 N.J. Super. 312, 495 A.2d 119 (App. Div. 1985) (sleeping quarters for employees not customarily incidental to a restaurant); Wegner Auto. Co., Inc. v. Ballard, 353 N.W.2d 57 (S,D. 1984) (shredding and storage of aluminum not accessory to a beer business); Fleury v. Town of Essex Zoning Bd. of Adjustment, 141 Vt 411, 449 A.2d 958 (1982) (a used car lot not accessory to an auto repair shop); Albee Indus., Inc. v. Inspector of Bldgs. of Waltham, 10 Mass. App. Ct 858, 407 N.E.2d 1307 (1980) (truck storage not customarily incidental to a contracting business); Genesee Farms, Inc. v. Scopano, 11 A.D.2d 784, 431 N.Y.S.2d 219 (4th Dep't 1980) (gas pumps not accessory to a dairy store); In re Porter Medical Assoc. Use Change Permit, 139 Vt. 132, 423 A.2d 491 (1980) (a pharmacy not accessory to a doctor's office); Tollway North Office Ctr. Central Nat 1. Bank in Chicago v. Streicher, 83 III. App. 3d 239, 38 III. Dec. 642, 403 N.E.2d 1246 (2d Dist. 1980) (a restaurant that serves alcohol is not accessory to an office building); Hopewell Tp. v. Wilson, 46 Pa. Commw. 442, 406 A.2d 612 (1979) (tire storage not accessory to a retail tire store).
The alleged accessory uses in this case are the food, clothing, showers, laundry and hair cuts The Lamb Center provided to individuals it counseled. The primary use of The Lamb Center is counseling services. Having reviewed the nationwide decisions, this Court finds that the food, clothing, showers, laundry and hair cuts fall into the "not accessory" category cited in the cases above. There is nothing to lead this Court to conclude that the mentioned services were "customarily incidental" to counseling.
Consequently, because the challenged services were not accessory or complementary to counseling, they were impermissible eleemosynary uses. Based on this determination and in conjunction with the fact that a BZA member used equitable considerations in casting his vote, I find that the BZA was plainly wrong in overturning the Zoning Administrator and that it applied incorrect principles of law in doing so. The BZA decision is reversed and the Zoning Administrator's determination is reinstated.
Next. I address the challenge to the validity of the City Ordinance that The Lamb Center raised in its complaint for declaratory judgment and injunctive relief.
THE LAMB CENTER'S COMPLAINT FOR DECLARATORY
JUDGMENT AND INJUNCTIVE RELLEF
On September 11, 2009, The Lamb Center brought a complaint asking the Court to declare the zoning ordinance provisions dealing with eleemosynary uses invalid, and to enjoin the City and Zoning Administrator from interfering with The Lamb Center's activities. The City and Administrator counter that: (1) The Lamb Center's challenge is time-barred; and (2) the ordinance provisions are valid.
a. Timeliness of The Lamb Center's Complaint
The first question is whether The Lamb Center timely filed its complaint. The Virginia Code states in pertinent part: "[e]very action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be tiled within thirty days of the decision with the circuit court having jurisdiction of the land affected by the decision." Va. Code Ann. §15.2-2285(F) (2011). However, the thirty-day limitation does not apply to claims that an ordinance is void ab initio, inverse condemnation claims, and claims based on the Federal Constitution. Kole v. City of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409 (1994).
It is true that more than thirty days have passed since the most recent amendment to the challenged provisions, which occurred in 2008, However, it is clear from The Lamb Center's complaint that it attacks the ordinance on constitutional grounds, i.e., the City's exercise of socio-economic zoning in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Thus, the thirty-day restriction does not apply, and The Lamb Center's complaint is timely.
b. Validity of the Zoning Ordinance
The General Assembly has granted to localities the power to regulate, restrict or prohibit the use of land via zoning ordinances. Va Code Ann. §15.2-2280 (2011). The legislative body entrusted with the task of enacting and amending zoning ordinances has broad discretion in doing so and will not be challenged so long as its actions are not unreasonable or arbitrary. Bd of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 322, 106 S.E.2d 152, 157 (1958). All zoning ordinances enjoy the presumption of validity. Res. Conservation Mgmt, Inc. v. Bd of Supervisors, 238 Va. 15, 380 S.E.2d 879 (1989) (decided under prior law).
The person or entity challenging an ordinance bears the burden of proof to establish that the ordinance is "clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals or general welfare." Davis, 200 Va. at 322. If the reasonableness of the ordinance can at all be justified, the reviewing court must uphold its validity. Id. Thus, the burden on the locality in defending a zoning ordinance is less than a preponderance of the evidence. The government merely needs to present evidence of reasonableness to withstand the challenge. Bd. of Supervisors v. Southland Corp., 224 Va. 514, 522-23, 297 S.E.2d 718, 722 (1982) (decided under prior law).
Notwithstanding the power of local governments to regulate land use, this power is limited by the Dillon Rule. The Dillon Rule states that localities only possess powers expressly granted by statute, necessarily implied powers and those indispensable to the express powers. Advanced Towing Co., LLC v. Fairfax County Bd. of Supervisors, 280 Va. 187, 193, 694 S.E.2d 621, 624 (2010), cert, denied Advanced Towing Co. LLC v. Fairfax County Bd. of Supervisors, .2010 U.S. LEXIS 8547 (U.S. Nov. 1, 2010).
Zoning ordinances that serve to include or exclude a particular socio-economic group are prohibited and in violation of the Dillon Rule because local governments do not have the power to engage in socio-economic zoning. Fairfax County v. DeGroff, 214 Va. 235, 238, 198 S.E.2d 600, 602 (1973) (decided under prior law). Evidence of discriminatory treatment may be sufficient to put the reasonableness of an ordinance in question. Bd. Of Supervisors v. Allman, 215 Va. 434, 211 S.E.2d 48 (1975). In DeGroff, the Court held that the county exceeded its authority by enacting an ordinance that required developers to devote fifteen per cent of their dwelling units to low-income housing. DeGroff, 214 Va. at 238. The Court concluded that the ordinance constituted socio-economic zoning in violation of the Takings Clause of the Fifth Amendment. Id.
The Lamb Center argues that the exclusion of eleemosynary institutions from the C-2 district results in the exclusion of homeless people who may benefit from the charitable services The Lamb Center and similar establishments offer. Accordingly, The Lamb Center contends that the ordinance constitutes socio-economic zoning in violation of equal protection principles.
The Court finds that me zoning ordinance provisions 110-781, 110-782 and 110-31 do not constitute socio-economic zoning because their purpose is not to exclude or include a specific socio-economic group in the C-2 district. Unlike the ordinance in DeGroff, which required developers to include lower income individuals in their building complexes, the City ordinance does not target a particular socio-economic group. The C-2 district is commercial in nature and the ordinance prohibits eleemosynary uses for all socio-economic groups in equal measure. This is not a case where the City has favored a certain group of persons or discriminated against a specified group. The Lamb Center has failed to carry its burden and prove that the City ordinance is "clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals or general welfare." Davis, 200 Va. at 322.
For the foregoing reasons, I uphold the validity of the City ordinance.
In sum, because I find that the BZA was plainly wrong and applied equitable considerations in reversing the Zoning Administrator, I reverse the BZA decision and reinstate the Zoning Administrator's determination. Furthermore, because I find that the City ordinance does not constitute socio-economic zoning, I reject The Lamb Center's argument that the ordinance is invalid. The request for declaratory judgment and injunctive relief is denied.
Counsel will prepare an order consistent with this letter opinion and submit it to my law clerk (Law Clerk No. 6) for my signature.
Sincerely, Robert J. Smith
Judge, Fairfax County Circuit Court
_______________________________________________ 1 The C-2 district is a retail commercial district. The C-2 district serves "to provide areas for office and general business establishments and uses accessory or complementary thereto." FAIRFAX CITY, Va., CODE OF ORDINANCES §110-3 1(b)(12) (2011). Va. circuit court. Va. Code Ann. §15.2-2314(2011).