Fein v. Payandeh

Present: All the Justices

MELANIE L. FEIN, TRUSTEE
OPINION BY
v. Record No. 112320 JUSTICE WILLIAM C. MIMS
November 1, 2012
MEHRMAH PAYANDEH

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge

In this appeal, we consider whether the circuit court

erred when it found that a Fauquier County subdivision did not

violate a restrictive covenant requiring compliance with the

county’s subdivision ordinance in effect in 1997. We review

whether the circuit court erred when it (a) ruled that Fauquier

County’s 1997 subdivision ordinance did not incorporate the

requirements of its 1997 zoning ordinance by implication; and

(b) refused to consider claims that the subdivision violated

certain provisions of the 1997 subdivision ordinance not

specifically referenced in the amended complaint.

I. BACKGROUND

The Melanie L. Fein Management Trust (“Fein”) and Mehrmah

Payandeh (“Payandeh”) each own multiple lots in the Apple Manor

Subdivision in Fauquier County. All lots in the subdivision

are subject to a recorded declaration of covenants, conditions

and restrictions that includes the following restrictive

covenant:

No purchaser, owner or member shall be
allowed to subdivide or resubdivide any lots

1
 herein, with the exception of lots 4R, 7R, 8 and
9R, so as to produce a greater number of smaller
lots than currently exist. Lot Numbers 4R, 7R,
8 and 9R may be resubdivided subject to the
provisions of the Fauquier County Subdivision
Ordinance in effect as of the date of execution
of this Deed of Modification of Covenants.

Lots 4R, 7R, 8 and 9R are among the lots owned by Payandeh.

The deed of modification referenced in the restrictive covenant

was executed on or about May 28, 1997.

In April 2006, Payandeh submitted a land development

application to the Fauquier County Department of Community

Development seeking the waiver of certain sections of the

Fauquier County zoning and subdivision ordinances so she could

subdivide lots 4R, 7R, 8, and 9R into eight smaller lots. In

particular, Payandeh requested waivers of § 7-302(1)(B) of the

Fauquier County Zoning Ordinance (“FCZO”) 1 and § 2-39(3)(C)(3)

1
FCZO § 7-302(1)(B), in effect on May 28, 1997, provided
that a “private street [within a development] must connect
directly to a state maintained street” unless

modified by the Board [of Supervisors] in
conjunction with a request for a special
exception permit, site plan approval or
subdivision plan approval provided the applicant
can show that no other remedy is realistically
feasible, that plausible alternatives have been
exhausted, that to not so modify the applicable
limitation(s) would place an unreasonable
restriction on the use of the property and that
properties through which access is planned will
not be unreasonably affected.

2
of the Fauquier County Subdivision Ordinance (“FCSO”) to

accommodate the private streets she proposed. 2

After the Fauquier County Planning Commission recommended

to the Fauquier County Board of Supervisors (the Board) that

Payandeh’s waiver request be denied, she proposed a text

amendment to FCZO § 7-302 to allow the Board to consider

certain development limitations as a factor for granting a

waiver of the requirement that a private street must connect

directly to a state maintained street. Following a public

hearing, the Board adopted the proposed text amendment 3 and

approved Payandeh’s waiver request. Payandeh’s request for a

waiver of the road design standards of FCSO § 2-39(3)(C)(3) was

2
FCSO § 2-39(3)(C)(3), in effect on May 28, 1997,
permitted approval by the Fauquier County Subdivision Agent of
the “division of a lot, tract or parcel of land into two or
more parcels all of which are fifty (50) acres or greater for
the purpose of transfer of ownership or building development”
provided that “the design standards of Article 7-303.1 of the
Zoning Ordinance are met.”
3
The amendment, adopted by the Board on March 8, 2007,
provides that in reviewing waiver applications,

the Board may consider as an additional factor
in granting such waiver the development
limitations which are imposed on the subject
property because the proposed division is either
(1) a family transfer pursuant to § 2-39 of the
Fauquier County Subdivision Ordinance, or (2) a
large lot subdivision pursuant to § 2-310 of
this Ordinance provided that the parent property
is subject to a conservation easement held by a
body politic or a political subdivision of the
State.
3
also approved, and her land development application was

approved on October 25, 2007.

Fein filed a declaratory judgment action seeking, among

other relief, a declaration from the circuit court that the

subdivision is “null and void as contrary to the [Apple Manor

Subdivision] Covenants.” In her amended complaint, Fein

alleged that the subdivision violated the restrictive covenant

because it was not in compliance with the zoning ordinance in

effect on May 28, 1997. Although the restrictive covenant does

not reference the zoning ordinance explicitly, Fein asserts

that it did so by implication. Her argument is that the

restrictive covenant requires any proposed subdivision by

Payandeh to comply with the subdivision ordinance as it was in

effect on May 28, 1997, and the subdivision ordinance requires

subdivision applications to comply with “other County

ordinances” (FCSO § 2-39(3)(C)(1)). Therefore, Payandeh’s

proposed subdivision also must comply with the zoning ordinance

as it was in effect on May 28, 1997. Fein further alleged that

FCZO § 7-302 in effect on May 28, 1997 required a private

street to connect directly to a public street. Consequently,

without the text amendment adopted in 2007, the waiver of this

requirement could not have been approved.

Fein also alleged in her amended complaint that Payandeh’s

subdivision violated the subdivision ordinance:

4
 11. The Subdivision violates the Covenants
because it violates the Fauquier County
Subdivision Ordinance in effect as of the
Execution Date.

However, the amended complaint did not state with particularity

what provisions of the subdivision ordinance allegedly were

violated.

The parties filed a joint stipulation of facts and cross-

motions for summary judgment. In Fein’s motion for summary

judgment, she asserted, as she had done in her amended

complaint, that the subdivision ordinance in effect in May 1997

required compliance with “all other county ordinances,
4
including the County’s Zoning Ordinance.” The zoning

ordinance in effect in May 1997 required all private streets to

connect directly to public streets unless waived by the Board.

According to Fein, since Payandeh required the 2007 text

amendment to the zoning ordinance to obtain approval of the

private streets in her subdivision, it violated the zoning

ordinance in effect in May 1997. Fein contended, therefore,

that Payandeh’s subdivision violated the restrictive covenant

and should be invalidated.

4
FCSO § 2-39(3)(C)(1) permits approval by the subdivision
agent of the “division of a lot, tract or parcel of land into
two or more parcels all of which are fifty (50) acres or
greater for the purpose of transfer of ownership or building
development” provided that “the lots/layout conform to
requirements of this Ordinance and other County Ordinances.”
5
 Payandeh’s motion for summary judgment asserted that the

subdivision was lawfully approved and conformed to the

restrictive covenant. She argued that the restrictive covenant

did not incorporate by reference the zoning ordinance. She

also argued that the parties to the restrictive covenant did

not intend to freeze in time the provisions for subdivision of

May 1997, and, even if they did, the amended complaint did not

allege that her subdivision violated provisions of the

subdivision ordinance.

Subsequently, Fein filed an amended motion for summary

judgment that amplified her previous arguments: “the

Subdivision Agent who approved the subdivision lacked the

authority to approve the subdivision as the subdivision did not

comply with the Subdivision Ordinance.” Fein claimed the

subdivision did not comply with FCSO § 2-39(3)(C)(3), which

requires compliance with certain road design standards. In

Fein’s brief in opposition to Payandeh’s motion for summary

judgment, she also argued the subdivision was improperly

approved because it did not comply with FCSO § 2-39(3)(C)(4),

which requires the establishment of a homeowner’s association,

6
and FCSO § 2-39(3)(C)(5), which requires Virginia Department of

Transportation approval for the highway entrance. 5

The circuit court granted Payandeh’s motion for summary

judgment and denied Fein’s amended motion for summary judgment.

The court ruled that Fein’s amended complaint did not include

the referenced claims relating to alleged violations of the

subdivision ordinance that she made in her amended motion for

summary judgment and supporting briefs, finding instead that

they constituted a separate cause of action.

The court further ruled that the plain language of the

restrictive covenant required compliance only with the

subdivision ordinance and did not include the zoning ordinance

by implication. Thus, Payandeh was entitled to judgment on

Fein’s claim that the subdivision violated the restrictive

5
The four subparagraphs of the subdivision ordinance that
are relevant to this case state:
C) The division of a lot, tract or parcel of land into
two or more parcels all of which are fifty (50) acres
or greater for the purpose of transfer of ownership
or building development provided:
1) the lots/layout conform to requirements of this
Ordinance and other County Ordinances;
. . . .
3) the design standards of Article 7-303.1 of the
Zoning Ordinance are met, except that the right-
of-way width may be reduced as provided above.
4) the homeowners association is established with
covenants which provide for the maintenance and
upkeep of the private street;
5) the highway entrance is approved by Virginia
Department of Transportation. . . .
7
covenant by reason of its noncompliance with FCSO § 2-

39(3)(C)(1) requiring conformance with the “requirements

of . . . other County Ordinances.”

II. ANALYSIS

Fein argues on appeal that the circuit court erred in

granting Payandeh’s motion for summary judgment and in denying

Fein’s motion for summary judgment because the evidence

demonstrated that the subdivision violated the restrictive

covenant by reason of its noncompliance with subsections

(1),(3),(4), and (5) of FCSO § 2-39(3)(C). Fein also contends

the circuit court erred in ruling that Fein’s amended motion

for summary judgment raised a new cause of action not pleaded

in her amended complaint and in refusing to permit her to amend

her complaint a second time.

A. Noncompliance with FCSO § 2-39(3)(C)(1)

The circuit court ruled only on Fein’s claim that the

subdivision violated the restrictive covenant because it did

not comply with FCSO § 2-39(3)(C)(1) in effect in 1997 and

therefore did not comply with the zoning ordinance by

implication.

The circuit court’s interpretation of the restrictive

covenant is “a question of law, which we review de novo.”

Scott v. Walker, 274 Va. 209, 212, 645 S.E.2d 278, 280 (2007).

8
 According to the restrictive covenant, Payandeh’s lots

“may be resubdivided subject to the provisions of the Fauquier

County Subdivision Ordinance in effect as of the date of

execution,” which was in May 1997. FCSO § 2-39(3)(C)(1)

permits approval of subdivisions provided “the lots/layout

conform to requirements of this Ordinance and other County

Ordinances.” Fein argues that this subsection’s reference to

“other” county ordinances required compliance with the 1997

zoning ordinance, specifically including the requirement that

private streets must connect to public streets in FCZO § 7-302.

Fein contends that because the subdivision of Payandeh’s lots

required the 2007 amendment to FCZO § 7-302, the subdivision

did not comply with the 1997 zoning ordinance and therefore did

not comply with “other County Ordinances” in effect in 1997.

As we have recognized, “courts of equity will enforce

restrictive covenants where the intention of the parties is

clear and the restrictions are reasonable.” Scott, 274 Va. at

212-13, 645 S.E.2d at 280. Restrictive covenants “are not

favored, and the burden is on him who would enforce such

covenants to establish that the activity objected to is within

their terms. They are to be construed most strictly against

the grantor and persons seeking to enforce them.” Id. at 213,

645 S.E.2d at 280; see also Waynesboro Vill., L.L.C. v. BMC

Props., 255 Va. 75, 80, 496 S.E.2d 64, 67-68; Anderson v. Lake

9
Arrowhead Civic Ass’n, 253 Va. 264, 269, 483 S.E.2d 209, 212

(1997); Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45

S.E.2d 152, 155 (1947).

To sustain Fein’s claim, we would have to construe the

restrictive covenant to require compliance not only with the

1997 subdivision ordinance, but also with the 1997 zoning

ordinance, despite the absence of any specific reference to the

zoning ordinance in the restrictive covenant. Furthermore, we

would have to construe FCSO § 2-39(3)(C)(1) to require

conformance with FCZO § 7-302 in effect in 1997 without regard

to any subsequent amendments, despite the absence of any

reference to the effective date for the “other County

Ordinances” to which the subdivision must conform. To construe

the restrictive covenant so broadly, in the absence of specific

language directing that result, “would run contrary to the

presumption in favor of the right to free alienation of land

and the strict construction of covenants that would limit that

right.” Anderson, 253 Va. at 270, 483 S.E.2d at 212. Thus,

the circuit court did not err in ruling that Payandeh was

entitled to judgment on this claim.

B. Noncompliance with FCSO § 2-39(3)(C)(3),(4), and (5)

Fein also asserts on appeal that the circuit court erred

by entering judgment in favor of Payandeh because the evidence

showed that Payandeh’s subdivision violated the restrictive

10
covenant by not complying with subsections (3),(4) and (5) of

FCSO § 2-39(3)(C). Fein argues that these assertions were

included within her amended complaint. Therefore, Fein

contends the circuit court erred in refusing to consider these

arguments in ruling on the cross-motions for summary judgment.

Payandeh responds that the circuit court properly limited

its consideration to Fein’s argument that the subdivision

violated FCSO § 2-39(3)(C)(1) in reliance on the general

principle that “‘[n]o court can base its decree upon facts not

alleged, nor render its judgment upon a right, however

meritorious, which has not been pleaded and claimed.’” Ted

Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va.

1139, 1141, 277 S.E.2d 228, 230 (1981) (quoting Potts v.

Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525

(1935)).

We disagree. In Paragraph 11 of her amended complaint,

Fein alleged that the subdivision violated the restrictive

covenant because it did not comply generally with the

subdivision ordinance in effect on May 28, 1997. In her

amended motion for summary judgment and supporting briefs, Fein

again argued that the subdivision did not comply with the 1997

subdivision ordinance because it did not satisfy the particular

11
requirements set forth in subsections (3),(4), and (5). 6 Though

particularized for the first time, this argument was not a new

or different claim than made in Paragraph 11 of the amended

complaint. Rather, Fein’s argument simply set forth in more

particular detail the provisions of the subdivision ordinance

on which she relied to support her claim in the amended

complaint. Therefore her argument “ ‘substantially accord[ed]

with the case as made in the pleading.’ ” Ted Lansing, 221 Va.

at 1141, 277 S.E.2d at 229-30 (quoting Bank of Giles County v.

Mason, 199 Va. 176, 180, 98 S.E.2d 905, 907 (1957)). Compare

Federal Land Bank of Baltimore v. Birchfield, 173 Va. 200, 216,

3 S.E.2d 405, 412 (1939) (amendments that only amplify the

allegations or prayer for relief do not introduce a new cause

of action).

We also reject Payandeh’s contention that the

consideration of Fein’s argument that consideration of

subsections (3),(4) and (5) would violate Rule 1:4(d). Rule

1:4(d) requires that every pleading “state the facts on which

6
The circuit court incorrectly perceived Fein’s argument
to be that the county failed to follow its own ordinance by
improperly approving the subdivision. The court focused on
language in Fein’s amended motion for summary judgment stating
that the county “lacked authority” to approve the subdivision
because of its noncompliance with the subdivision ordinance.
However, at the hearing, Fein repeatedly emphasized that the
argument asserted in her amended motion for summary judgment
addressed the “same issue [as in her amended complaint] does
the subdivision comply with the subdivision ordinance.”
12
the party relies” and “clearly inform[] the opposite party of

the true nature of the claim.” Fein’s amended complaint

alleged the facts surrounding the execution of the restrictive

covenant and Payandeh’s subdivision. The amended complaint

expressly alleged that “the [s]ubdivision violates the

Covenants because it violates the Fauquier County Subdivision

Ordinance in effect as of the Execution Date [of the deed].”

These allegations were sufficient to put Payandeh on notice of

the “true nature” of Fein’s claim. 7

Because Fein’s claim that the subdivision violated FCSO

§ 2-39(3)(C)(3),(4) and (5) did not introduce a new claim, the

circuit court erred in refusing to consider Fein’s arguments

relating to these provisions of the subdivision ordinance.

III. CONCLUSION

In sum, we hold that the circuit court did not err in

granting Payandeh’s motion for summary judgment and denying

Fein’s amended motion for summary judgment on Fein’s claim that

the subdivision violated the restrictive covenant by reason of

7
The amended complaint specifically described one basis
for Fein’s claim – that the subdivision did not comply with the
zoning ordinance in effect in 1997. This specificity, however,
did not preclude Fein from asserting other bases for Fein’s
separate claim in Paragraph 11 that the subdivision did not
comply with the subdivision ordinance in effect in 1997.
Payandeh was certainly entitled to file discovery or a motion
for a bill of particulars pursuant to Rule 3:7 for an order
requiring Fein to “amplify” the grounds asserted in Paragraph
11 of the amended complaint.
13
its noncompliance with FCSO § 2-39(3)(C)(1) in effect in 1997.

However, we further hold that the circuit court erred in

refusing to consider Fein’s claim that the subdivision violated

FCSO § 2-39(3)(C)(3),(4) and (5) in effect in 1997.

Accordingly, we will remand this case to the circuit court for

consideration of that claim. 8

Affirmed in part,
reversed in part,
and remanded.

8
Our resolution of this issue in Fein’s favor renders
unnecessary our consideration of Fein’s claim that the circuit
court erred in refusing to permit her to amend her complaint a
second time.
14
JUSTICE McCLANAHAN, with whom JUSTICE POWELL joins, concurring
in part and dissenting in part.

I agree with the majority's holding that the circuit court

did not err in granting judgment in favor of Payandeh with

regard to Fein's claim that the subdivision violated the

restrictive covenant because it violated FCSO § 2-39(3)(C)(1)

requiring compliance with "other" county ordinances. However,

I disagree with the majority's holding that the circuit court

erred in refusing to consider Fein's claim that the subdivision

violated the restrictive covenant because it violated FCSO § 2-

39(3)(C)(3), (4) and (5). This was not the claim presented to

the circuit court and we should not consider it for the first

time on appeal.

In Fein's original motion for summary judgment, she argued

that because the 2007 text amendment was required for

subdivision approval, the subdivision was not in compliance

with the 1997 subdivision ordinance and, therefore, violated

the restrictive covenant. In Fein's amended motion for summary

judgment, she added a claim that the subdivision agent lacked

authority to administratively approve the subdivision by reason

of its noncompliance with subsections (3),(4), and (5) of FCSO

15
§ 2-39(3)(C). 1 This claim was fundamentally different from

Fein's claim in her amended complaint that the subdivision

violated the restrictive covenant by reason of its

noncompliance with the 1997 subdivision ordinance. 2

The law in Virginia is well established that a court

cannot enter judgment based on a claim that is not alleged in

the pleadings. Dabney v. Augusta Mut. Ins. Co., 282 Va. 78,

86, 710 S.E.2d 726, 730-31 (2011). " 'Pleadings are as

essential as proof, and no relief should be granted that does

1
Fein contended the subdivision "was not a large lot
subdivision pursuant to section 2-39(3)(C) because it did not
comply with 2-39(3)(C)(3), which could not be waived" and
"could not be administratively approved pursuant to section 3-
2(A)." Thus, Fein argued, the subdivision agent lacked the
authority to administratively approve the subdivision under
"section 3-2(A) of the Subdivision Ordinance" or as "a lawful
large lot subdivision." Expanding on this claim in her brief
in opposition, Fein asserted the subdivision was improperly
approved as a large lot division because it did not comply with
FCSO § 2-39(3)(C)(4), which requires the establishment of a
homeowner's association, and FCSO § 2-39(3)(C)(5), which
requires Virginia Department of Transportation approval for the
highway entrance.
2
As the circuit court stated at the hearing on the cross-
motions for judgment, the claim added to the amended motion for
summary judgment was "that the county failed to follow its own
subdivision ordinance on issues of lot approval. And,
therefore, because the county failed to comply with the
subdivision ordinance, the subdivision is invalid." The
circuit court further explained that "[u]p to this point in
time, [Fein was] asserting rights that were in the possession
of a lot owner of the subdivision who could enforce covenants,
if, in fact, those covenants were violated." But in the
amended motion for summary judgment, Fein was claiming that
"the county did not follow its own ordinances and, therefore,
the actions of the county should be voided."

16
not substantially accord with the case as made in the

pleading.' " Ted Lansing Supply Co. v. Royal Aluminum &

Constr. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 229-30

(1981) (quoting Bank of Giles County v. Mason, 199 Va. 176,

180, 98 S.E.2d 905, 907 (1957)). Therefore, " '[n]o court can

base its decree upon facts not alleged, nor render its judgment

upon a right, however meritorious, which has not been pleaded

and claimed.' " Ted Lansing, 221 Va. at 1141, 277 S.E.2d at

230 (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207,

181 S.E. 521, 525 (1935)).

In my view, the circuit court properly limited its

consideration of the motions for summary judgment to the

allegations in Fein's amended complaint. The amended complaint

alleged that the subdivision violated the restrictive covenant.

It did not allege that the subdivision agent lacked the

authority to approve the subdivision. Therefore, the circuit

court could not enter judgment on this claim.

In fact, the claim that Fein now asserts on appeal as

having been precluded by the circuit court is not the same

claim she made in her amended motion for summary judgment.

Fein argues in this Court that the circuit court erred in

entering judgment against her because the evidence showed the

subdivision violated FCSO § 2-39(3)(C)(3),(4) and (5), not that

the subdivision agent was without lawful authority to approve

17
the subdivision. Because this was not the claim presented to

the circuit court, I would hold that we should not consider it

for the first time on appeal. See Rule 5:25; Hawthorne v.

VanMarter, 279 Va. 566, 581, 692 S.E.2d 226, 235 (2010). 3

For these reasons, I would affirm the circuit court's

judgment in its entirety.

3
Having concluded that the circuit court properly refused
to consider Fein's new claim that the subdivision agent lacked
authority to approve the subdivision, I would not consider
Fein's contention that the circuit court erred in refusing to
permit Fein to amend her complaint a second time because Fein
did not move for leave to permit an amendment. See Rule 5:25;
Jones v. Ford Motor Co., 263 Va. 237, 261, 559 S.E.2d 592, 604
(2002); P.L. Farmer, Inc. v. Cimino, 185 Va. 965, 970, 41
S.E.2d 1, 3 (1947).
18