Present: All the Justices
AROGAS, INC., ET AL.
v. Record No. 091502 OPINION BY
CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR.
FREDERICK COUNTY BOARD OF September 16, 2010
ZONING APPEALS, ET AL.
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
I.
In this appeal we consider whether petitioners, who
challenge the validity of a proffer that a board of supervisors
amended and approved after a public hearing, have stated a
cause of action against a board of supervisors. We also
consider whether the circuit court erred by remanding the
proceeding to the zoning administrator and requiring him to
accept the site plan application for review.
II.
Petitioners Arogas, Inc., (Arogas) and T. P. Manning filed
their amended “petition for writ of certiorari and declaratory
judgment” against the Frederick County Board of Zoning Appeals
and Frederick County Board of Supervisors (collectively the
County). Petitioners alleged that the Board of Supervisors
violated § 165-13(A) of the Frederick County Code because the
Board amended a proffer after the initial public hearing and
approved the amended proffer without holding a subsequent
public hearing. Frederick County Code § 165-13(A) requires,
among other things, that a final proffer should be received in
writing, signed by the owner or applicant, five days prior to
an advertised public hearing. The County filed a demurrer to
the amended petition for declaratory judgment and asserted,
among other things, that the petitioners failed to state a
cause of action to declare “void ab initio” the subject zoning
proffer. The circuit court entered a judgment in favor of the
County, and the petitioners appeal. 1
III.
A.
Initially, we note that we will not consider the
petitioners’ original petition because the petitioners failed
to incorporate or refer to their initial petition in the
amended petition. We have held that “ ‘when a circuit court
sustains a demurrer to an amended [petition] which does not
incorporate or refer to any of the allegations that were set
forth in a prior [petition], we will consider only the
allegations contained in the amended pleading to which the
demurrer was sustained.’ ” Hubbard v. Dresser, Inc., 271 Va.
1
This Court will not consider the petitioners’ argument
that Frederick County should have filed a plea in bar instead
of a demurrer because Arogas raises this argument for the first
time on appeal. Rule 5:25; Appalachian Voices v. State Corp.
Comm’n, 277 Va. 509, 515, 675 S.E.2d 458, 460 (2009); Martin v.
2
117, 119-20, 624 S.E.2d 1, 2 (2006) (quoting Yuzefovsky v. St.
John’s Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136
(2001)); Dodge v. Randolph-Macon Woman’s College, 276 Va. 10,
14, 661 S.E.2d 805, 807 (2008).
We also observe that a demurrer admits the truth of all
properly pleaded material facts. “ ‘All reasonable factual
inferences fairly and justly drawn from the facts alleged must
be considered in aid of the pleading. However, a demurrer does
not admit the correctness of the pleader’s conclusions of
law.’ ” Dodge v. Randolph-Macon Woman’s College, 276 Va. 1, 5,
661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69,
71, 372 S.E.2d 373, 374 (1988)); accord Tronfeld v. Nationwide
Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 449 (2006);
Fuste v. Riverside Healthcare Ass’n, 265 Va. 127, 131-32, 575
S.E.2d 858, 861 (2003).
B.
The petitioners alleged the following facts in their
amended petition that we must consider as true for purposes of
this appeal. On April 27, 2004, the Frederick County Board of
Supervisors held a public hearing regarding a rezoning
application. Prior to the hearing, applicants George M. and
Carol T. Sempeles submitted a written proffer prohibiting the
Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368 (2005) (“arguments
made for the first time on appeal will not be considered”).
3
wholesale or retail sale of diesel fuel on a certain 3.4-acre
portion of land that the Sempeles owned, which was part of a
larger parcel. After a public hearing, the Board limited the
scope of the proffer to prohibit only “[a]ny use involving the
retail or wholesale sale of diesel fuel for over the road truck
carriers.” Some Board members expressed concern with allowing
“truck stops,” which are a permitted use in a B2 zone where the
3.4-acre parcel is located. The Board members also discussed
the fact that they did not want to prohibit all diesel sales;
at which point the original proffer was amended verbally as
stated above. The amended proffer was signed by the landowners
on May 3, 2004, after the Board had voted unanimously to
approve the rezoning.
In April 2006, Triad Engineering, Inc. (Triad Engineering)
submitted a proposed site plan on behalf of Manning and Arogas,
as the developer, to the Frederick County Planning Department.
The Sempeles were the record owners of the property when the
site plan was submitted, and Arogas received a deed for the
property from the Sempeles in March 2007. The petitioners
desire to develop the approximately 3.4 acres of the real
property with a 5,625 square foot service station and a
convenience market, and this appeal is limited to the use of
the 3.4-acre property. According to the proposed plan, the
service station will include “filling areas” and “pumps” for
4
the retail sale of gasoline and diesel fuel. Mark R. Cheran,
the Frederick County Zoning Administrator, informed Triad
Engineering that the County’s planning department would not
process the site plan application because of a “discrepancy
between the proposed use of [the] property and the property’s
current zoning designation and associated proffers.”
The petitioners alleged that the amended proffer is void
ab initio because the Sempeles did not submit the amended
proffer to the Board of Supervisors five days before a public
hearing in violation of § 165-13(A) of the Frederick County
Code. Additionally, the petitioners alleged that contrary to
the zoning administrator’s conclusions, service stations that
sell retail gasoline and diesel fuel are permitted uses in
business general B2 districts, pursuant to Frederick County
Code § 165-82.
The petitioners alleged that the amended proffer “clearly
does not [prohibit] truck stops, nor does [the proffer] prevent
diesel sales to small and large diesel consuming vehicles
including but not limited to cars, pick-up trucks, dump trucks,
step-vans[,] [sport utility vehicles], buses, motor homes,
campers and the like.” Continuing, the petitioners pled that
“an ‘over the road truck carrier’ is not defined in the county
code, nor otherwise capable of definition on its face.”
5
IV.
A.
Frederick County Code § 165-13, entitled “Conditional
rezoning,” states in relevant part:
“The applicant for a rezoning may proffer in
writing, before the public hearing by the Board of
Supervisors, conditions to be placed on the approval
of the rezoning.
“A. Procedures. Proffers shall be
presented to the Planning Commission at the
advertised public hearing for the rezoning. The
Planning Commission shall make a recommendation on
the acceptance of the proffers and the rezoning to
the Board of Supervisors following the procedures
described for amendments to this chapter. Final
proffers shall be received in writing, signed by the
owner and applicant, at least five (5) days prior to
the advertised hearing of the Board of Supervisors.”
Additionally, Frederick County Code § 165-11, entitled,
“Board of Supervisors public hearing,” states in relevant part:
“Before approving and adopting any amendment, the
Board shall hold at least one public hearing thereon,
pursuant to public notice as required by § 15.2-2204
of the Code of Virginia, after which the Board may
make appropriate changes or corrections in the
proposed amendment; provided, however, that no
additional land may be zoned to a different
classification than was contained in the public
notice without an additional public hearing after
notice required by § 15.2-2204 of the Code of
Virginia.”
(Emphasis added).
Arogas and Manning argue that the circuit court erred when
it sustained the demurrer on the basis that they failed to
plead a viable cause of action. We disagree.
6
As required by § 165-13 of the Frederick County Code, the
Sempeles, who were the owners of the property during the 2004
rezoning, submitted a proffer in writing to the Board of
Supervisors before the Board conducted its public hearing. 2
Among the conditions that the Sempeles included in the written
proffer was a condition that no diesel fuel would be sold on
the rezoned property.
The petitioners do not allege that the Sempeles’ original
proffer was untimely or violated § 165-13(A) of the Frederick
County Code. Rather, the petitioners allege that the Board of
Supervisors voted to amend the original proffer after the
public hearing was closed. The petitioners argue that the
amended proffer was not filed five days prior to an advertised
hearing in violation of § 165-13(A) of the Frederick County
Code. The petitioners imply that § 165-13(A) of the Frederick
County Code requires that the Board of Supervisors hold an
additional public hearing before voting on a proffer that the
Board amends after the initial public hearing. The plain
2
We have stated that:
“Proffers are voluntary commitments made by
landowners in order to facilitate approval of
conditional zoning and rezoning requests by
ameliorating the impact of development of their
property on the local infrastructure and the
character and environment of adjoining land.”
7
language of Frederick County Code § 165-13(A), however, does
not mandate that an additional public hearing must be held to
consider a proffer that the Board of Supervisors amends after
the initial public hearing.
A purpose, among others, of the plain language in the
County Code is to enable the Board of Supervisors to obtain
input during the public hearing from the public and affected
property owners regarding written proffers. Frederick County
Code § 165-11 authorizes the Board of Supervisors to “make
appropriate changes or corrections in the proposed amendment”
after the public hearing. We find no language in the Frederick
County Code that prohibits the Board of Supervisors, with the
written consent of the applicant property owners, from amending
the written proffer after discussion and public hearing. The
Board is not required to hold an additional public hearing each
time the Board amends a proffer. Otherwise, the public hearing
process may never come to a conclusion. Accordingly, we hold
that the Board of Supervisors was entitled to amend the
original proffer to limit the prohibition on the sale of diesel
fuel only to over-the-road truck carriers.
Additionally, Code § 15.2-2285(C) states in part:
“Before approving and adopting any zoning ordinance
or amendment thereof, the governing body shall hold
Hale v. Board of Zoning Appeals, 277 Va. 250, 273, 673 S.E.2d
170, 182 (2009).
8
at least one public hearing thereon . . . after which
the governing body may make appropriate changes or
corrections in the ordinance or proposed amendment.”
We have consistently and repeatedly stated the principles
of statutory construction that we apply when a statute is clear
and unambiguous:
“ ‘While in the construction of statutes the
constant endeavor of the courts is to ascertain and
give effect to the intention of the legislature, that
intention must be gathered from the words used,
unless a literal construction would involve a
manifest absurdity. [When] the legislature has used
words of a plain and definite import the courts
cannot put upon them a construction which amounts to
holding the legislature did not mean what it has
actually expressed.’ ”
Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172
S.E. 445, 447 (1934)); accord Dodge, 276 Va. at 15, 661 S.E.2d
at 808; Davis v. Tazewell Place Assocs., 254 Va. 257, 260-61,
492 S.E.2d 162, 164 (1997); Abbott v. Willey, 253 Va. 88, 91,
479 S.E.2d 528, 530 (1997). We have also stated that “[i]n
construing a statute, we must apply its plain meaning, and ‘we
are not free to add [to] language, nor to ignore language,
contained in statutes.’ ” BBF, Inc. v. Alstom Power, Inc., 274
Va. 326, 331, 645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp.
v. Keane Federal Systems, Inc., 265 Va. 38, 46, 574 S.E.2d 253,
257 (2003)).
9
Code § 15.2-2285(C) authorized the Board to make changes
to the proffers that the Sempeles had submitted. The 2004
rezoning of the property was an amendment to the County’s
zoning ordinance. Code § 15.2-2285(C) enables local
governments to consider comments that citizens or property
owners articulate during public hearings and to exercise
legislative prerogatives to respond to those comments by
amending proposed proffers. There is simply no language in Code
§ 15.2-2285 that prohibits the County from amending the proffer
after the public hearing has occurred. 3 We note that the
Sempeles agreed with the changes to the amended proffer after
the public hearing.
Contrary to the petitioners’ arguments, the present case
is unlike our decision in Gas Mart Corp. v. Board of
Supervisors, 269 Va. 334, 344-48, 611 S.E.2d 340, 345-47
(2005), when we held that a county failed to provide the
statutorily required descriptive summary in the notice of the
proposed amendment. Likewise, our decision in Glazebrook v.
Board of Supervisors, 266 Va. 550, 555-57, 587 S.E.2d 589, 591-
93 (2003), is inapplicable here because in Glazebrook the
3
In 2006, the General Assembly amended Code § 15.2-
2298(A) which states in relevant part that “The governing body
may also accept amended proffers once the public hearing has
begun if the amended proffers do not materially affect the
overall proposal.”
10
governing body enacted zoning amendments utilizing a notice
procedure that failed to comply with Code § 15.2-2204(A).
Also, Arogas’ reliance upon City of Alexandria v. Potomac
Greens Assoc., 245 Va. 371, 378, 429 S.E.2d 225, 228-29 (1993),
is misplaced because a city failed to provide two notices as
required by former Code § 15.1-431, and we held that the city’s
failure to comply with the former statute rendered the zoning
ordinance void ab initio. In the present case, the County
complied with Code § 15.2-2285(C) and Frederick County Code
§§ 165-11 and -13(A). Accordingly, we hold that the circuit
court did not err by concluding that Arogas and Manning failed
to plead a cognizable cause of action.
B.
In 2006, Triad Engineering, on behalf of Arogas, submitted
a site plan to the County for the development of the 3.4-acre
parcel. The zoning administrator determined that the site plan
demonstrated a proposed use of the property which included the
sale of diesel fuel for over-the-road truck carriers and that
such sales violated the proffer which was a part of a
conditional zoning of the property. The zoning administrator
refused to accept the site plan for the review process. Arogas
appealed the zoning administrator’s decision to the Board of
Zoning Appeals, which denied the appeal.
11
At the conclusion of an ore tenus hearing, the circuit
court held that the zoning administrator should have accepted
the site plan for review and followed the normal application
process before making a determination regarding the proposed
use.
Arogas and Manning argue that the circuit court erred
because the court did not “interpret the proffer” and that this
Court should interpret the proffer on appeal. We disagree.
Section 165-802.02(A) of the Frederick County Code states
in relevant part:
“Applicants shall submit two copies of the site plan
to the Zoning Administrator for review, along with
applicable fees and completed application materials
required by the Zoning Administrator. Final approval
of the site plan shall be given by the Zoning
Administrator. At least five copies of the site plan
are required to be submitted to the Zoning
Administrator for final approval.”
Pursuant to Frederick County Code § 165-802.02(A), Arogas
properly submitted copies of a site plan to the zoning
administrator for review, but the zoning administrator refused
to review and process the site plan application. Arogas
disagreed with the zoning administrator’s decision and
exercised its statutory rights of appeal. See Code §§ 15.2-
2311, -2314. Pursuant to Code § 15.2-2314, 4 the circuit court
4
Code § 15.2-2314 states in relevant part: “The circuit
court may reverse or affirm, wholly or partly, or may modify
12
ruled that the zoning administrator erred by failing to accept
the site plan application for review and the court reversed the
decision of the Board of Zoning Appeals. The circuit court
correctly rejected Arogas’ request that the court usurp the
role of the zoning administrator by reviewing the site plan
application, and we also decline to do so.
V.
For the above reasons, we will affirm the judgment of the
circuit court.
Affirmed.
the decision [of the board of zoning appeals] brought up for
review.”
13