James v. City of Falls Church

PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy, S.J.

KATHERINE E. JAMES, TRUSTEE OF THE COLUMBIA
BAPTIST CHURCH, ET AL.
OPINION BY
v. Record No. 090444 JUSTICE CYNTHIA D. KINSER
June 10, 2010
CITY OF FALLS CHURCH, ET AL.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge

This appeal involves a landowner's application to

consolidate three lots of real estate into one lot. The primary

issue we decide is whether a zoning administrator's

interpretation of an applicable zoning ordinance was binding,

pursuant to Code § 15.2-2311(C), on a planning commission's

decision whether to approve a consolidation application.

Because a planning commission is not an "administrative officer"

and because the zoning administrator did not issue a "written

order, requirement, decision or determination," we conclude that

Code § 15.2-2311(C) is not applicable in the situation before

us. For these and other reasons, we will affirm the circuit

court's judgment that the planning commission's denial of the

consolidation application was based on the applicable

ordinances, and was not arbitrary or capricious.
 FACTS AND PROCEEDINGS

The trustees of Columbia Baptist Church (Columbia Baptist) 1

seek to consolidate seven contiguous lots of real estate located

in the City of Falls Church (the City) into one lot containing

approximately 5.7 acres. The seven lots range in size from

7,500 square feet to 156,791 square feet and are zoned either R-

1A (low density residential district) or T-1 (transitional

district) under the City's zoning ordinances. Three of the lots

contain historic structures subject to the City's Historic and

Cultural Conservation District (HCC) ordinances. 2

Initially, Columbia Baptist, in a letter to the City's

zoning administrator, requested "a zoning interpretation" to

determine whether Columbia Baptist could consolidate the seven

lots. In a letter dated October 3, 2006, the zoning

administrator responded that the consolidation would be

permissible under applicable ordinances. The zoning

1
The appellants in this appeal are the trustees holding
legal title to Columbia Baptist's real estate and the church's
director of administration. Those individuals, along with the
church, will be collectively referred to as "Columbia Baptist."
2
See Falls Church City Code § 48-204 (providing
descriptions of R-1A, T-1, and HCC districts).
The City re-codified its code subsequent to the submission
of briefs in this appeal. For purposes of clarity, this opinion
will refer to the current sections rather than the former
sections cited by the circuit court and the parties. The re-
codification did not involve substantive changes to the sections
at issue in this appeal.

2
administrator stated that although "the actual consolidation

process is a Planning Commission function[,] the Zoning Code

does provide for the circumstances arising out of an approved

consolidation." Quoting Falls Church City Code (City Code)

§ 48-800(a), which states that a lot in the R-1A district on

which an HCC-designated structure is located "shall not be

reduced in size such that it no longer meets the minimum lot

size, frontage, and setback requirements of a lot in the R-1A

district," the zoning administrator concluded that Columbia

Baptist's consolidation plan "results in a much larger lot and

does so without reducing setbacks," thus satisfying the

requirements of that ordinance. The zoning administrator

further concluded that, pursuant to the applicable zoning

districts, "there is a by right use available for the existing

structures after a consolidation."

After receiving the zoning administrator's response,

Columbia Baptist prepared its consolidation application and

plat, which it filed with the City's Planning Division in

January 2007. Several months later, a senior planner from the

Planning Division submitted a report to the City of Falls Church

Planning Commission (Planning Commission) regarding Columbia

Baptist's consolidation application. According to the senior

planner, the proposed consolidation would constitute a

"subdivision" as that term is defined in City Code § 38-1 and,

3
pursuant to City Code § 38-34(4), building sites must have the

dimensions and areas required by the City's zoning ordinances.

Continuing, the senior planner concluded that the

consolidation "would be reducing the size of several lots

subject to the HCC district regulations to zero." The lot

lines, therefore, would be "extinguished and a building site

containing the minimum lot area for R-1A lots would not be

provided for each of the designated structures," thus violating

City Code § 48-800(a). 3 Since one of the HCC designated lots was

already below the minimum lot size required in the R-1A

district, the senior planner further concluded that any

additional reduction in size would also violate the provisions

of City Code § 48-800(a) prohibiting a "lot existing at the time

of designation of the structure which is substandard with

respect to the minimum lot size . . . requirements of a lot in

the R-1A district" from being "further reduced in size." For

these reasons, the senior planner recommended that the Planning

Commission deny the consolidation application.

The Planning Commission subsequently considered Columbia

Baptist's consolidation application along with the senior

3
The senior planner believed the zoning administrator's
contrary interpretation was "based on 'circumstances arising out
of an approved consolidation,' and therefore set[] forth zoning
information under the scenario that a subdivision ha[d] already
occurred."

4
planner's report. Columbia Baptist argued that its proposed

consolidation would not reduce the lot sizes to zero, but rather

would increase the size of the lots to one larger lot. During

the hearing, one of the Planning Commission members commented

that the zoning administrator seemed to assume that a

consolidation had already been approved. Some members also

expressed concerns about the lack of information concerning what

plans Columbia Baptist had for the property if the seven lots

were consolidated. After discussion, the Planning Commission

unanimously denied the application "for the reasons set forth in

the [s]taff report and as stated in the [s]taff recommendations

on Page 4 of the [s]taff report."

Pursuant to Code § 15.2-2260(E), Columbia Baptist filed a

complaint in the Circuit Court of Arlington County, appealing

the Planning Commission's decision. Columbia Baptist alleged

that the Planning Commission's denial of "the consolidation

application was not properly based on the applicable ordinances

and was arbitrary and capricious." Therefore, Columbia Baptist

asked the circuit court to approve its application or direct the

Planning Commission to do so.

At a hearing before the circuit court, Columbia Baptist

presented testimony from, among others, the zoning

administrator, who stated that part of his job included

"rendering interpretations of the zoning ordinance." The zoning

5
administrator also testified that he understood the

consolidation had not been approved and that his interpretation

of City Code § 48-800(a) was "for a potential application to

consolidate." He further explained that he reviewed his

response to Columbia Baptist's request for a zoning

interpretation with the City's attorney and the general manager

of the City's Development Services Department before sending it

to Columbia Baptist, and noted that no one appealed his

"determination" to the City's Board of Zoning Appeals. The

zoning administrator reiterated his conclusion that, "[f]rom a

zoning standpoint, there is no prohibition against a

consolidation."

On cross-examination, the zoning administrator, however,

conceded that subdivision of property is the responsibility of

the Planning Commission. And, when asked if his conclusion

"assumed a consolidation had been approved," the zoning

administrator replied, "Yes." On re-direct, the zoning

administrator then again stated that at the time of his

response, he understood a consolidation of Columbia Baptist's

seven lots had not taken place.

At the conclusion of Columbia Baptist's evidence, the City

moved to strike the evidence. According to the City, Columbia

Baptist failed to establish that the Planning Commission's

disapproval was not properly based on the applicable ordinances,

6
or was arbitrary or capricious. The City argued that the

provisions of City Code § 38-34(4) require building sites to

have the dimensions and area required by the applicable zoning

designation. The proposed consolidation, the City asserted,

violated not only City Code § 48-800(a) by eliminating the lots

on which the HCC-designated structures are located, but also

City Code § 38-34(4) by reducing the lot sizes such that they no

longer met the minimum lot size required in the R-1A zoning

district.

Columbia Baptist responded, arguing that although the

Planning Commission was charged with approving consolidations,

the zoning administrator was charged with interpreting zoning

ordinances. Thus, according to Columbia Baptist, the Planning

Commission was required to follow the zoning administrator's

interpretation that the proposed consolidation would not violate

the zoning ordinances, specifically City Code § 48-800(a). In

addition, Columbia Baptist stated that it was not seeking to

eliminate either the historic designations or the historic

buildings.

The circuit court granted the motion to strike. The court

concluded that although Columbia Baptist relied upon the zoning

administrator's interpretation, the Planning Commission had "the

authority and the right" to deny the application based on its

7
interpretation of the applicable zoning ordinances and that its

decision was not arbitrary or capricious.

Columbia Baptist filed a motion to reconsider, arguing that

while the circuit court decided whether the Planning

Commission's decision was arbitrary or capricious, it failed to

determine whether the Planning Commission's decision was

properly based on the applicable ordinances as required by Code

§ 15.2-2259(D). Columbia Baptist further asserted that the

Planning Commission based its decision on erroneous facts, i.e.,

that the church intended to demolish the historic structures,

and that the zoning administrator believed consolidation had

already occurred when he responded to Columbia Baptist's request

for a zoning interpretation. Finally, Columbia Baptist argued

that the zoning administrator's October 2006 letter was a

decision or determination under Code § 15.2-2311(C) and

consequently a "thing decided" since an appeal of that

"determination" was not taken.

The circuit court subsequently entered a final order

granting the motion to strike, holding that Columbia Baptist

failed to carry its burden to prove that the Planning

Commission's decision was not properly based on the ordinances,

or was arbitrary or capricious. The court dismissed the

complaint with prejudice, and this appeal followed.

8
 ANALYSIS

On appeal, Columbia Baptist challenges the circuit court's

judgment on three grounds. First, it asserts the circuit court

applied the wrong standard of review in granting the City's

motion to strike the evidence. Next, Columbia Baptist contends

the circuit court erroneously concluded that it failed to meet

its burden of proof to show that the Planning Commission's

decision was not properly based on the applicable ordinances, or

was arbitrary or capricious. Finally, Columbia Baptist argues

the circuit court erred in finding that "the Planning Commission

had the right and authority to disregard" the zoning

administrator's interpretation of City Code § 48-800(a). We

will address the issues in that order.

With regard to the first issue, Columbia Baptist correctly

notes that a trial court is required to accept as true all

evidence favorable to a plaintiff and any reasonable inferences

that may be drawn from such evidence when ruling on a motion to

strike the plaintiff's evidence. Austin v. Shoney's, Inc., 254

Va. 134, 138, 486 S.E.2d 285, 287 (1997). "The trial court is

not to judge the weight and credibility of the evidence, and may

9
not reject any inference from the evidence favorable to the

plaintiff unless it would defy logic and common sense." 4 Id.

Columbia Baptist argues that the circuit court failed to

apply these principles because it did not accept as true the

evidence favorable to the church when granting the motion to

strike. Instead, according to Columbia Baptist, the court

accepted as true two factually incorrect assumptions upon which

the Planning Commission purportedly based its decision: (1) that

Columbia Baptist would destroy the historic structures if the

consolidation were approved, and (2) that the zoning

administrator based his interpretation of City Code § 48-800(a)

on the belief that consolidation had already taken place.

According to Columbia Baptist, its evidence demonstrated both

that it had no plans to demolish the historic structures and

that the zoning administrator did not think consolidation of the

seven lots had already occurred. Columbia Baptist thus argues

that if the circuit court had accepted its evidence as true, it

would have denied the motion to strike.

Contrary to Columbia Baptist's assertions, the record

contains no evidence that either the senior planner or the

Planning Commission based their respective decisions on an

4
When reviewing a trial court's decision to strike a
plaintiff's evidence, this Court likewise views the evidence in
the light most favorable to the plaintiff. Lee v. Nationwide
Mut. Ins. Co., 255 Va. 279, 284, 497 S.E.2d 328, 330 (1998).

10
assumption that the zoning administrator believed consolidation

of the seven lots had already occurred. Although the senior

planner noted in her report that the zoning administrator's

response was "based on 'circumstances arising out of an approved

consolidation,'" she did not recommend denial of the

consolidation application for that reason. Rather, the senior

planner explicitly stated, in both the analysis and

recommendation portions of her report, that the proposed

consolidation would eliminate the existing lot lines of the R-1A

lots on which the historic structures are located, thereby

reducing the size of those lots to zero in violation of City

Code § 48-800(a). The Planning Commission denied the

consolidation application "for the reasons set forth in the

[s]taff report and as stated in the [s]taff recommendations on

Page 4 of the [s]taff report."

Similarly, the Planning Commission did not base its denial

of the consolidation application on the assumption that Columbia

Baptist would demolish the historic structures if the

consolidation were approved. As Columbia Baptist notes, some

citizens thought the historic buildings would be destroyed and,

at the Planning Commission hearing, voiced their disapproval of

the application for that reason. And, some members of the

Planning Commission expressed general concerns because they did

not know Columbia Baptist's future development plans for the

11
lots. Any concern about destruction of the historic structures,

however, did not form the basis of the Planning Commission's

decision, and Columbia Baptist's contention otherwise is

inaccurate. See West v. Mills, 238 Va. 162, 168, 380 S.E.2d

917, 921 (1989) (finding insufficient evidence that a planning

commission's decision was influenced by citizen pressure).

In the absence of evidence showing that the Planning

Commission based its decision on incorrect factual assumptions,

the circuit court necessarily did not fail to accept as true the

evidence favorable to Columbia Baptist as well as all reasonable

inferences drawn from that evidence. See Austin, 254 Va. at

138, 486 S.E.2d at 287. In sum, this assigned error has no

merit.

In its second assignment of error, Columbia Baptist asserts

the circuit court erred in finding that it failed to meet its

burden of proof to demonstrate, pursuant to Code §§ 15.2-2259(D)

and -2260(E), that the Planning Commission's decision was not

properly based on the applicable zoning ordinances, or was

arbitrary or capricious. 5 Citing Seymour v. City of Alexandria,

273 Va. 661, 643 S.E.2d 198 (2007), Columbia Baptist first

5
Columbia Baptist filed its consolidation application as
both a preliminary and final subdivision plat, see Code §§ 15.2-
2259(D) and –2260(E), respectively. The circuit court's final
order, however, references only Code § 15.2-2260(E). The
operative language in both sections is identical.

12
argues that the Planning Commission failed to base its decision

on the applicable ordinances "but instead [relied] on a

misinterpretation of the ordinance and upon the Planning

Commission's desire to have before it an application showing

[Columbia Baptist's] (as yet undetermined) development plans for

the properties' future use." As already explained, the Planning

Commission's determination was not based on concerns regarding

Columbia Baptist's future development plans, or the lack

thereof, for the property. Although some Planning Commission

members voiced concerns about the absence of such plans, the

Planning Commission's denial of the consolidation application

was based on the senior planner's report and the conclusion that

the proposed consolidation would violate City Code § 48-800(a).

In Seymour, the public as well as planning commission

members voiced concerns about future use of certain property,

and the commission actually stated those concerns as one of the

reasons for disapproving an application for a preliminary

subdivision plat. 273 Va. at 665-66, 643 S.E.2d at 200. In

contrast, the Planning Commission here did not rely upon future

development plans as a basis for denying Columbia Baptist's

consolidation application.

Columbia Baptist further argues that although the circuit

court concluded the Planning Commission's denial of the

consolidation application was not arbitrary or capricious, it

13
failed to address whether that denial was "properly based on the

applicable ordinance." Our review of the record reveals that

the circuit court did not fail to determine whether the Planning

Commission's decision was properly based on the applicable

ordinances. In granting the motion to strike, the circuit court

stated that "the [P]lanning [C]ommission [had] the authority and

the right to do what [it] did." That statement necessarily

reflects the circuit court's conclusion that the Planning

Commission's decision was properly based on the applicable

ordinances.

Finally, with regard to the second assignment of error,

Columbia Baptist contends that since the zoning administrator

concluded the consolidation would be permissible under City Code

§ 48-800(a), the Planning Commission's interpretation to the

contrary was arbitrary or capricious. Columbia Baptist asserts

not only that the Planning Commission misinterpreted the zoning

administrator's position, 6 but also that there was no evidence

the zoning administrator's interpretation was wrong. In sum,

Columbia Baptist argues it carried its burden to demonstrate

that the Planning Commission's denial of its consolidation

6
As already explained, the Planning Commission did not base
its denial of the consolidation application on erroneous factual
assumptions.

14
application was not based on the applicable ordinances, and was

arbitrary or capricious.

A trial court must sustain a planning commission's decision

approving or disapproving a preliminary or final subdivision

plat unless the decision "was not properly based on the

ordinance applicable thereto, or was arbitrary or capricious."

Code §§ 15.2-2259(D) and -2260(E); see also Board of Supervisors

of Culpeper County v. Greengael, L.L.C., 271 Va. 266, 277, 626

S.E.2d 357, 363 (2006). On appeal, "the trial court's judgment

is presumed correct and will not be set aside unless the

judgment is plainly wrong or unsupported by the evidence."

Greengael, 271 Va. at 277, 626 S.E.2d at 363.

The ordinance at issue, City Code § 48-800(a), states:

A lot in the R-1A . . . district on which a
designated structure is located shall not be reduced
in size such that it no longer meets the minimum lot
size, frontage, and setback requirements of a lot in
the R-1A district. A lot existing at the time of
designation of the structure which is substandard with
respect to the minimum lot size, frontage, or setback
requirements of a lot in the R-1A district shall not
be further reduced in size, unless any substandard
feature remains unaffected.

Further, according to City Code § 38-1, a "[s]ubdivision"

includes, inter alia, "the consolidation of two or more lots or

parcels."

We agree with the circuit court that the Planning

Commission's decision was properly based on the applicable

15
ordinances, and was not arbitrary or capricious. Columbia

Baptist's application proposed, in part, to consolidate three

lots containing historic structures into one, larger lot.

According to City Code § 48-800(a), each of those lots cannot

"be reduced in size such that it no longer meets the minimum lot

size, frontage, and setback requirements." Consolidating the

three lots upon which the historic structures are located

necessarily requires the elimination of lot lines, meaning the

lots would no longer satisfy the frontage and setback

requirements. In addition, as the senior planner explained in

her report, extinguishing the lines for three lots means that "a

building site containing the minimum lot area for R-1A lots

would not be provided for each of the designated structures."

(Emphasis added.)

We have defined an act as "arbitrary and capricious" when

it is " 'willful and unreasonable' and taken 'without

consideration or in disregard of facts or law or without

determining principle,' " School Bd. of the City of Norfolk v.

Wescott, 254 Va. 218, 224, 492 S.E.2d 146, 150 (1997)(citation

omitted), or when the deciding body "departed from the

appropriate standard in making its decision." Johnson v. Prince

William County Sch. Bd., 241 Va. 383, 389 n.9, 404 S.E.2d 209,

212 n.9 (1991). In denying Columbia Baptist's consolidation

application on the basis of City Code § 48-800(a), the Planning

16
Commission did not disregard facts, applicable law, determining

principles, or the appropriate standards. In sum, Columbia

Baptist failed to show that the Planning Commission’s denial of

its consolidation application was not properly based on the

applicable ordinances, or was arbitrary or capricious. Thus, we

conclude that the circuit court did not err in finding that

Columbia Baptist failed to satisfy its burden of proof under

Code §§ 15.2-2259(D) and -2260(E).

Finally, in the third assignment of error, Columbia Baptist

asserts the circuit court erred in ruling that the Planning

Commission had the authority to ignore the zoning

administrator's interpretation of City Code § 48-800(a).

According to Columbia Baptist, the provisions of Code § 15.2-

2311(C) prohibited the Planning Commission from rejecting the

zoning administrator’s interpretation of City Code § 48-800(a)

because that interpretation was not appealed within 60 days.

Columbia Baptist further argues that the zoning administrator

alone has the authority to administer and enforce the zoning

ordinances and his interpretation was made in that official

capacity. The Planning Commission, although given the power to

approve consolidation of lots, does not have the authority to

administer zoning ordinances and was required, according to

Columbia Baptist, to accept the zoning administrator’s

interpretation.

17
 We agree with the City that Code § 15.2-2311(C) is not

applicable in this case. That section states:

In no event shall a written order, requirement,
decision or determination made by the zoning
administrator or other administrative officer be
subject to change, modification or reversal by any
zoning administrator or other administrative officer
after 60 days have elapsed from the date of the
written order, requirement, decision or determination
where the person aggrieved has materially changed his
position in good faith reliance on the action of the
zoning administrator or other administrative officer
unless it is proven that such written order,
requirement, decision or determination was obtained
through malfeasance of the zoning administrator or
other administrative officer or through fraud. The 60-
day limitation period shall not apply in any case
where, with the concurrence of the attorney for the
governing body, modification is required to correct
clerical or other nondiscretionary errors.

Code § 15.2-2311(C).

By its terms, the statute only limits the subsequent

actions of a "zoning administrator or other administrative

officer." Id. The Planning Commission, however, is neither.

Because "administrative officer" is not defined in the statute,

we give the term its ordinary meaning. Thompson v.

Commonwealth, 277 Va. 280, 289, 673 S.E.2d 469, 473 (2009). The

term "administrative officer" is singular. In contrast, a

planning commission consists of five to fifteen members who are

appointed by the governing body and must be residents of the

locality. Code § 15.2-2212.

18
 Furthermore, Code §§ 15.2-2309(1) and –2311(A) refer to

"administrative officer[s] in the administration or enforcement

of this article," i.e., Article 7 pertaining to zoning. In

contrast, Article 2 contains the statutory provisions regarding

local planning commissions, which "serve primarily in an

advisory capacity to the governing bodies." Code § 15.2-2210.

Thus, the Planning Commission is not an "administrative

officer."

In addition, the provision in Code § 15.2-2311(C)

prohibiting "change, modification or reversal" pertains only to

a zoning administrator's or other administrative officer's

"written order, requirement, decision or determination." In

this case, however, the zoning administrator merely provided an

interpretation of City Code § 48-800(a). In its letter to the

zoning administrator, Columbia Baptist requested "a zoning

interpretation." And in his reply letter, the zoning

administrator made clear that he was responding to "a request

for an interpretation." He further stated: "While the actual

consolidation process is a Planning Commission function[,] it is

my interpretation" that the ordinances permit the consolidation.

(Emphasis added.) That "interpretation" lacked the finality of

an "order, requirement, decision or determination" under

Code § 15.2-2311(C). See Board of Supervisors of Stafford

County v. Crucible, 278 Va. 152, 160-61, 677 S.E.2d 283, 287-88

19
(2009) (finding that Code § 15.2-2311(C) did not apply to a

zoning verification letter because the letter did not

affirmatively approve the project at issue and establish a

vested right, but merely interpreted the definition of "school"

under the then-current zoning laws); see also Code § 15.2-

2286(A)(4) (discussing a zoning administrator's decision on an

application for modification from an ordinance and stating that

"[t]he decision of the zoning administrator shall constitute a

decision within the purview of [Code] § 15.2-2311).

Regardless of the applicability of Code § 15.2-2311(C),

Columbia Baptist, nevertheless, maintains that the Planning

Commission has no authority to interpret zoning ordinances

because that responsibility lies exclusively with the zoning

administrator by virtue of Code § 15.2-2286(A)(4). However,

pursuant to City Code § 38-4 and City Charter § 17.29 as well as

Code § 15.2-2259, the Planning Commission has the authority to

approve subdivision plats. See also Code § 15.2-2258 (requiring

landowner to submit a proposed subdivision plat to a planning

commission). Further, the Planning Commission is required to

provide specific reasons for disapproving a plat by

"identify[ing] deficiencies in the plat that cause the

disapproval by reference to specific duly adopted ordinances,

regulations, or policies." Code § 15.2-2259(A); see also City

Charter § 17.29 (the Planning Commission must consider a

20
subdivision plat in "the light of the regulations and

restrictions applicable to the same and approve or disapprove

the plat in accordance therewith"). The Planning Commission

thus necessarily must interpret and apply relevant zoning

ordinances in approving or disapproving a proposed subdivision

plat. 7 The Planning Commission was not obliged to adopt the

zoning administrator’s "interpretation" of City Code § 48-

800(a). Thus, the circuit court did not err in finding that the

Planning Commission could disregard the zoning administrator's

interpretation in deciding whether to approve or disapprove the

consolidation application.

CONCLUSION

For these reasons, we will affirm the judgment of the

circuit court.

Affirmed.

7
Columbia Baptist also argues that City Code § 38-89 makes
the approval of its subdivision application a "ministerial" act.
That section, however, deals with the consolidation of vacated
plats and is inapplicable to this case.

21