Opinion
Civil Action No. 42875
09-19-2007
Re: Rock River Trust Company, Trustee for the Hewitt Beer Family Trust v. Board of Supervisors of the Loudoun County, Virginia, et. al.
John J. Sabourin, Jr., Esquire Sally Gillette, Esquire 44084 Riverside Parkway, Suite 300 Leesburg, Virginia 20176 Ronald J. Brown, Esquire Assistant County Attorney County of Loudoun One Harrison Street, S.E., 5th Floor Leesburg, Virginia 20175
John J. Sabourin, Jr., Esquire
Sally Gillette, Esquire
44084 Riverside Parkway, Suite 300
Leesburg, Virginia 20176 Ronald J. Brown, Esquire
Assistant County Attorney
County of Loudoun
One Harrison Street, S.E., 5th Floor
Leesburg, Virginia 20175 Dear Counsel:
Plaintiff, Rock River Trust Company, Trustee for the Hewitt Beer Family Trust, complains that the Loudoun County Planning Commission, on an appeal from an unfavorable decision of the Loudoun County Director of Building and Development, acted improperly in disapproving the preliminary subdivision plat for the Carriage Hill Subdivision proposed for development west of the village of St. Louis, in Loudoun County, Virginia.
A further appeal was properly perfected from the Commission's disapproval of the preliminary plat to this Court in accordance with the applicable provisions of the Loudoun County subdivision ordinance and state enabling statute. Loudoun County, Va., Land Subdivision and Development Ordinance §1242.05 (2) (2007); Va. Code Ann. §15.2-2260 E. On an appeal from the denial of the preliminary plat to the Commission, "[t]he action of the Commission…(is)…substituted for the Director and (is)…deemed final." Loudoun County, Va., Land Subdivision and Development Ordinance §1242.05 (2) 3 (2007). In a three-count complaint, plaintiff seeks relief by way of a statutory appeal, declaratory judgment, and mandamus.
The parties have previously stipulated or are otherwise in agreement as to certain facts relevant to a consideration of the appeal.
Rock River Trust Company as Trustee of the Hewitt Beer Family Trust is the title owner of three parcels of real property consisting of 183 acres west of the Village of St. Louis. It is an Illinois Company licensed to do business in Virginia. In June of 2005, Rock River began efforts to submit a preliminary subdivision application for the 183-acre project to be known as Carriage Hill.
David Bowers, a professional engineer, and consultant on the project for the plaintiff explained the subdivision process used in seeking approval. Following an initial pre-submission meeting between the applicant and County staff, a preliminary subdivision plat is prepared and submitted. Should the preliminary plat be approved or conditionally approved by the Director, the applicant is required to prepare "construction plans and profiles", in anticipation of the filing of a record plat. The subdivision process from pre-submission to record plat may take three years.
In the development of the Carriage Hill project, the plaintiff prepared a feasibility study; prepared a Environmental and Cultural Resource Existing Conditions Plat; prepared a Department of Historic Resources Report and a Department of Conservation and Recreation Report; conducted a presubmission meeting with County staff; prepared archeological studies; conducted a Wetlands Verification with the Army Corps of Engineers; completed a preliminary soils review and floodplain study; made efforts to obtain the Health Department approval of drainfield locations/sites and wells; and prepared a preliminary plat of the subdivision. Overall, plaintiff expended over $1.3 million dollars on the preparation of the preliminary plat.
On June 12, 2006, the plaintiff submitted the Carriage Hill preliminary subdivision plat application to the Loudoun County Department of Building and Development. The application requested approval of a preliminary plat of subdivision containing 87 single-family residential lots. This density was consistent with the zoning of the parcel.
Terrance D. Wharton, Director of the Department of Building and Development, by letter dated August 15, 2006, informed the plaintiff of the disapproval of the preliminary subdivision plat application for Carriage Hill. In the typical case of a subdivision application, the first response by the Director after official acceptance of the subdivision application is a set of comments requiring correction by the applicant. These Official Comments are forwarded to the applicant in accordance with Section 102 D, of the Facilities Standards Manual. Subsequent to receiving such response by the Director, the applicant may make further modifications that are accompanied by a statement that it will comply with all comments. Upon a finding that such revisions will not substantially alter the conceptual layout of the preliminary plat, the Director may conditionally approve the plat if it is consistent with the provisions of the Facilities Standards Manual.
Adherence to the provisions of the Facilities Standards Manual is mandated in furtherance of the obligation of the Director under the Land Subdivision and Development Ordinance to, "…approve the preliminary plat provided that the requirements and provisions of this Ordinance (Loudoun County Land Subdivision and Development Ordinance) the facilities (sic) Standards Manual, and other applicable Ordinances have been met." Loudoun County, Va., Land Subdivision and Development Ordinance §1243.08 (1)(a) (2007).
The County of Loudoun established the Middleburg West Agricultural and Forestal District by ordinance adopted July 18, 1989. Pursuant to the provisions of Va. Code Ann. §15.2-4303, the General Assembly has granted localities the authority to adopt ordinances in furtherance of the Agricultural and Forestal Districts Act. The Agricultural and Forestal Districts Act is reflective of the public policy of the Commonwealth,
[T]o conserve and protect agricultural and forestal lands as valued natural and ecological resources which provide essential open spaces for clean air sheds, watershed protection, wildlife habitat, as well as for aesthetic purposes. It is the purpose of this chapter to provide a means for a mutual undertaking by landowners and localities to protect and enhance agricultural and forestal land as a viable segment of the Commonwealth's economy and as an economic and environmental resource of major proportions."
Va. Code Ann. §15.2-4301.
On July 7, 1999, Loudoun County renewed the Agricultural District Ordinance for a 10-year term to July 18, 2009. On March 3, 2001, at the request of the owner, the three parcels compromising 186 acres of land, and that are the object of the instant preliminary subdivision application, were added to, and remains in, the Middleburg West Agricultural District. Unless renewed at the request of the owner, membership of the 186 acres will expire on July 18, 2009. As proposed by the plaintiff, the preliminary plat for Carriage Hill, although consistent with zoning densities for the property, would conflict with the 50 acre minimum lot size permitted for land subdivisions within the District. Middleburg West Agricultural and Forestal District Ordinance, III A.
In addition to restrictions imposed upon the plaintiff's preliminary plat by the Agricultural District, a portion of the land proposed for subdivision is encumbered by covenant restrictions dated December 11, 1978; and recorded among the land records of Loudoun County. Application of these restrictive covenants, that expire on January 1, 2009, to tracts of land included within the 186 acres would be precluded approval of the preliminary plan for the creation of a subdivision comprised of 87 single family lots.
In his disapproval letter of August 15, 2006, the Director of the Department of Building and Development set out 12 reasons for disapproval of the application. Nine of these reasons are assertions by staff of noncompliance with specific technical requirements of the Loudoun County Land Subdivision and Development Ordinance and/or the Facilities Standards Manual for preliminary plans. These various technical requirements were addressed in testimony at the hearing in this case. Absent inclusion of plaintiff's property in the Middleburg West Agricultural and Forestal District, plaintiff may be correct in the assertion that the application should have been conditionally approved based upon such technical requirements. However, one need not speculate upon whether or not such action was appropriate, since the issue of the presence of the tract within the Agricultural and Forestal District, raised by the Director and confirmed by the Planning Commission on appeal, is determinative of the instant appeal.
With respect to the two other issues addressed in the Disapproval Letter, one was reversed on review by the Planning Commission and is of no further interest on appeal to this Court. The other issue concerns the existence of the Restrictive Covenants relating to a portion of the property sought to be subdivided. In the opinion of Mr. Wharton and that of the Planning Commission, the preliminary subdivision plan warranted disapproval because of a,
[F]ailure to comply with §1243.08(1)(a) which provides that the Director shall approve such application provided that the requirements and provisions of this Ordinance (LSD), the Facilities Standards Manual, and other applicable ordinances have been met. An approximately 36-acre portion of Tax Map 71, Section 34…. and all of Tax Map 85, Parcel 7…are subject to a Deed of Mutual Covenants and Restrictions recorded in Deed Book 721, Page 582, on February 9, 1979, which restrict the subdivision of the property until January 1, 2009. Under the terms of the Covenants and Restriction, the two parcels may be subdivided, but shall not be subdivided into more than two parcels. The application proposes to subdivide the two parcels into approximately forty-four (44) lots instead of four (4) allowed under the Covenants and Restrictions. Under LSDO Section 1241.09(2), since the terms of the Covenants and Restrictions imposed duties and obligations more restrictive than the requirements of the LSDO, and such restrictive terms are not inconsistent with the LSDO, such Covenants and Restrictions shall be operative and supplemental to the LSDO. Therefore, since the proposed subdivision would not comply with the Covenants and Restrictions, the application must be disapproved.
While the grantees of the Covenants and Restrictions have a right to seek enforcement against the plaintiff, the County and the Board of Supervisors are not a party to such agreements. Local government is not a third party beneficiary to such agreements. Kelley v. Griffin, 252 Va. 26 (1996). Provisions of the subdivision ordinance may not be used in such a way as to interfere with the right of the parties to the Covenants and Restrictions to enforce the more restrictive provisions of the recorded instruments. This would include the applicant. As Justice Russell has observed, "…the legislature will not be deemed, by implication, to deprive the courts of their traditional equity powers to administer justice between private parties." Leake v. Casati, 234 Va. 646, 651 (1988). (authority omitted).
Accordingly, the Court is of the opinion that the Planning Commission erred in disapproving the application predicated upon a voluntarily imposed covenant restricting the use of land and to which neither the County or Board is a party. However, such a finding does not end the present inquiry.
Plaintiff asserts that the reliance by the Commission upon the limitations imposed by the Middleburg West Agricultural and Forestal District in denying approval of the Carriage Hill preliminary plat is misplaced. While the Subdivision Ordinance expressly permits such reliance, plaintiff contends that the provision for, and application of, the compliance requirement contained in the subdivision ordinance violates the Dillon Rule.
The Dillon Rule is a limitation on the powers exercised by local governing bodies. Thus, "local governing bodies have only those powers that are expressly granted, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." Ticonderoga Farms v. County of Loudoun, 242 Va. 170, 174 (1991).
Localities are required by the General Assembly to, "…adopt an ordinance to assure the orderly subdivision of land and its development." Va. Code Ann. §15.2-2240. In preparing and adopting subdivision ordinances, localities are required to include certain regulations that are reasonable and seek to apply what are deemed necessary land planning tools and in furthering the orderly subdivision of land and its development. Va. Code Ann. §15.2-2241. In addition, the legislature has set out optional provisions that a subdivision ordinance may include. Va. Code Ann. §15.2-2242.
A subdivision ordinance may not be used to foreclose the power of a court to effect partition of property in kind. Leake v. Cassati, 234 Va. 646 (1988). Moreover, local governing bodies may not, "…under the guise of a subdivision ordinance, enact standards which would effectively permit it to rezone property in a manner inconsistent with the uses permitted by the property's zoning classification." Board of Supervisors v. Countryside Invest. Co., 258 Va. 497, 505 (1999). In applying the Dillon Rule of strict construction,
[T]he Board does no have unfettered discretion when deciding what matters it may include in its subdivision ordinance. Rather the Board must include those requisites that are mandated in Code §15.2-2241 and may, at the Board's discretion, include the optional provisions of a subdivision ordinance contained in Code §15.2-2242. Additionally, the Board is entitled to exercise discretion only to the extent permitted by Code §§15.2-2241 and-2242.
Leake v. Cassati, at 504. (authority omitted).
In the instant case, at issue is a provision conditioning approval on compliance with the provisions of a duly enacted ordinance. This is an ordinance that expressly states that it is to further public policy of the Commonwealth. Neither the Commissioner nor the Director were exercising "unfettered discretion", or seeking to use the subdivision process as a substitute for the Agriculture District Ordinance. In requiring compliance, the subdivision ordinance creates no new rights or obligations but ensures orderly land planning occurs in harmony with other regulations that, consistent with legislative grant, further the orderly land development in the Commonwealth.
One commentator has observed,
The question whether a plat may be rejected on the ground that it does not comply with the zoning ordinance has not been litigated frequently. Possibly the lack of cases is explainable in terms of the evident propriety of requiring a subdivision plan to comply with other ordinances regulating the use of land."
4 Kenneth H. Young, Anderson's American Law of Zoning § 25.21 (4th Ed., 1997).
In addition to harmonizing land use regulations, the provision in question reflects the role subdivision controls play in the scheme of land planning and development.
The fact that preliminary approval is only sought does not limit the scope of review. Although recordation of the plat is the final step giving legal status to the newly created lots attendant to the division, the legislature has recognized that protected property rights may follow from the coupling of the approval of the preliminary plat with other factors. Va. Code Ann. §15.2-2307.
Accordingly, the plaintiff's appeal of the disapproval of the preliminary subdivision plat for Carriage Hill will be dismissed and the case removed from the docket.
Mr. Brown may draw an Order consistent with this opinion, to which Mr. Sabourin may note his exception.
Very truly yours,
Thomas D. Horne, Judge