16.7 Upzonings
Library | Real Estate Transactions in Virginia (Virginia CLE) (2019 Ed.) |
16.7 UPZONINGS
16.701 In General. After a comprehensive plan has been established and a zoning ordinance enacted to provide the primary means for implementing the policies of the plan, focus shifts to the proper classification of individual parcels of land. Although the majority of Virginia localities still maintain a fairly simple zoning classification system, an increasing number use numerous subclassifications of major use groups that incorporate detailed regulations for development in those classifications. 192
Probably most land use cases appearing before governing bodies involve upward changes from one use classification to another or the grant of a special use permit. "Upzonings" are legislative decisions that increase the intensity of development permitted on a given parcel of land.
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16.702 Presumption of Validity.
A. In General. The basic structure of an upzoning case is deceptively straightforward. Land use decisions by local governing bodies are legislative actions enjoying a presumption of validity, and those actions will not be lightly overturned by the courts. Although certain aspects of this process have been simplified or clarified over the last 20 years, the rules of litigation in a land use case have been reiterated in decisions reaching back decades. The Virginia Supreme Court has stated that
[t]he legislative branch of a local government in the exercise of its police powers has wide discretion in the enactment and amendment of zoning ordinances. Its action is presumed to be valid so long as it is not unreasonable and arbitrary. The burden of proof is on [the person] who assails it to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare. The court will not substitute its judgment for that of a legislative body, and if the reasonableness of a zoning ordinance is fairly debatable it must be sustained. . . . The presumption of reasonableness, however, is not absolute. Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of reasonableness. 193
Not only the legislature's but also the trial court's findings in a land use decision are entitled to deference by higher reviewing authority, for the court's decision itself "carries a presumption of correctness," and the Supreme Court "still accord[s] the action a presumption of legislative validity in [its] review." 194 In any challenge to legislative action, the challenger must overcome the presumption at every level.
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B. "Fairly Debatable" Standard. If the challenger produces evidence that the locality's action was arbitrary, capricious, or unreasonable, the locality must respond with countervailing evidence that its decision was in fact reasonable. If, upon weighing the parties' evidence, the court finds the governmental decision to have been "fairly debatable," that is, one upon which the evidence would lead objective and reasonable persons to reach different conclusions, the legislative action must prevail regardless of the intrinsic merit of the landowner's proposal. 195
In a frequently cited formulation, the court has said that an issue may be said to be fairly debatable "when, measured by both quantitative and qualitative tests, the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions." 196
C. Reasonableness of Underlying Zoning. While the court has continued to articulate the "fairly debatable" standard in the foregoing terms, it has added a gloss to that standard by refocusing judicial inquiry from the reasonableness vel non of the governing body's denial of an upzoning to the prima facie question of whether the underlying zoning of the property after the governing body's action in the case remains reasonable without regard to consideration of the landowner's application. 197 In Miller & Smith, Inc., for example, the court affirmatively blessed the practice of granting a "lesser included zoning," whereby the governing body is permitted, upon denial of an application for a particular zoning classification, to rezone property to some other category that it deems reasonable, which is less intense than the category for which notice was given. In that case, the applicant had sought rezoning to Fairfax County's C-3 office classification, and the trial court had upheld the board's refusal to approve a C-3 classification. The board had rezoned the land to its R-5 district, permitting single family homes. The trial court's order, however, had expressly found
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that both R-5 and R-8 zoning were reasonable on the evidence and forbade the board to refuse a rezoning application to either classification. The Virginia Supreme Court reversed and held that the board had only to consider the R-5 classification. "When two reasonable zoning classifications apply to a property, the legislative body (the board of supervisors in this case) has the legislative prerogative to choose between those reasonable zoning classifications." 198 This is true even if the classification that the board ultimately chooses is not the most appropriate. 199 If the underlying zoning is reasonable ("fairly debatable"), then it does not matter whether the landowner's application was profoundly reasonable or even the best use of the property.
Thus, it has become a part of the landowner's prima facie case to allege and prove that the underlying zoning of its property is unreasonable, as well as to allege that the decision of the governing body was itself arbitrary, capricious, and unreasonable. 200 This is not a hypothetical effort. In City Council v. Wendy's of Western Virginia, Inc., 201 Wendy's had sought commercial rezoning of a parcel of property located in a 40-acre residentially zoned subdivision. The property was located on a major road, and although there were approximately thirty-seven homes in the subdivision, development in the area along the road had changed to a mix of commercial and industrial uses. The comprehensive plan, however, contemplated not commercial but industrial development of the land in the future. When the council denied the commercial rezoning, Wendy's sued. The trial court looked closely at the underlying zoning of the property and determined that residential uses were no longer reasonable for the property. It remanded the case to the council with a finding that the requested commercial rezoning was reasonable. In reversing, the Virginia Supreme Court held that the trial court had erred on the underlying zoning issue, for the area remained a stable residential community, and the city was reasonable in trying to protect a diminishing stock of land for future industrial uses. The court reiterated the fundamental point that even assuming the reasonableness of the rezoning
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applied for, "when, as here, the existing zoning and the proposed zoning are both appropriate for the property in question, the legislative body has the prerogative to choose the applicable classification, not the property owner or the courts." 202
16.703 Judicial Treatment of Upzoning Denials. While it is impossible here to detail all of the conditions and circumstances that can make an issue fairly debatable, it is possible to identify certain common characteristics of rezoning cases and those factors that have been enumerated by the Virginia Supreme Court over the years.
In the three decades following World War II, the court was plainly unwilling to support denials of rezonings on the grounds that public facilities such as roads, schools, fire stations, sewer and water systems, and the like were, or would be, insufficient to bear the weight of additional development. The high water mark of this approach was probably Board of Supervisors v. Allman, 203 where the court noted explicitly in reversing a Fairfax zoning denial that "[a]s a practical matter, and because of ever-existing problems of finance, the construction and installation of necessary public facilities usually follow property development and the demand by people for services." 204Board of Supervisors v. Lerner205 and other cases discussed below significantly weakened the impact of Allman but did not overrule it. Thus, the availability of services such as roads, water, sewer, and schools remains relevant to zoning decisions, but this availability does not appear to be as dispositive as it once was.
Other cases indicate that the court will not support denials of rezonings where it appears that the purpose of the denial is to favor one economic interest over another. 206
While the zoning of neighboring or adjacent land is significant to upzoning determinations, it is not dispositive. The court has looked closely at
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surrounding classifications when it appears that an applicant has been subject to discriminatory zoning decisions. 207 Localities have significant leeway, however, to establish lines separating commercial from other uses, especially where that line is clearly and justifiably established in the comprehensive plan. 208
The court will probably not sustain a denial of a rezoning solely on the basis of citizen opposition, although public sentiment may properly reflect legitimate local concerns about one or more of the eight purposes of zoning ordinances. The court has expressly stated that "while the views of persons owning property in the neighborhood should be considered, property owners have no vested right to continuity of the zoning of the general area in which they reside. The mere purchase of land does not create a right to rely on existing zoning." 209
While it is true that the Virginia courts have not shown any particular deference to citizen opposition without more, the Fourth Circuit, in AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 210 took a different approach...
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