Present: All the Justices
BOARD OF SUPERVISORS OF
FAIRFAX COUNTY, ET AL.
v. Record No. 030039 OPINION BY JUSTICE CYNTHIA D. KINSER
October 31, 2003
RICHARD M. ROBERTSON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Judge
The primary issue in this appeal concerns a challenge
to the judgment of the circuit court holding that the
denial of a landowner’s application seeking a deviation
from a setback requirement was arbitrary, capricious, and
unreasonable. Finding sufficient evidence of
reasonableness to make the denial a fairly debatable issue,
we will reverse the judgment of the circuit court.
MATERIAL PROCEEDINGS AND FACTS
The appellee, Richard M. Robertson (“Robertson”), owns
approximately 2.78 acres of real estate located on the west
side of the Dulles Airport Access Road (“DAAR”) and south
of Idylwood Road in Fairfax County. The property is zoned
to the R-3 District, permitting the development of three
residential dwelling units per acre. Although the
property’s lengthy southeastern boundary abuts the DAAR, it
is shielded from that roadway by an eight-foot, wooden
acoustical fence. Because of the property’s configuration,
virtually all the parcel lies within 200 feet of the DAAR.
Thus, a 200-foot setback restriction set forth in Fairfax
County Zoning Ordinance (“Zoning Ordinance”) § 2-414(1)(A)
is applicable and affects the development of Robertson’s
property.
The provisions of Zoning Ordinance § 2-414(1)(A)
require a minimum distance of 200 feet between all
residential buildings and “right(s)-of-way of interstate
highways and the Dulles Airport Access Road.” Pursuant to
subsection (3) of that ordinance, “[d]eviations” from the
setback requirement “may be permitted with Board of
Supervisors’ approval of appropriate proffered conditions,
if it finds that such deviations will further the intent of
the Ordinance, adopted comprehensive plan and other adopted
policies.” However, the setback requirement “shall not
apply in those instances where a lot has been recorded
prior to the effective date of this Ordinance where the
enforcement of this regulation would negate the use of the
lot in accordance with the provisions of the zoning
district in which located.” Zoning Ordinance § 2-414(4).
Since Robertson’s property satisfied the conditions in
subsection (4), the parties stipulated that he could
develop one single-family dwelling on the property.
2
Robertson, however, wanted to build four single-family
dwelling units on his property. Thus, in accordance with
the provisions of Zoning Ordinance § 2-414(3), Robertson
filed a proffered condition amendment application seeking a
deviation from the 200-foot setback requirement. The
proffers submitted with Robertson’s application included,
among other things, the use of certain materials and
building techniques that would reduce the interior noise
level in the four dwellings that he proposed to construct
on the subject property.
After several hearings before the Fairfax County
Planning Commission (“the Commission”), the Commission
denied Robertson’s application. 1 One of the commissioners
voiced concerns about noise levels in the yards of the
homes that would be constructed if the deviation was
approved and about traffic data showing an increasing
number of vehicles using the DAAR each day. The
commissioner also stated that Robertson’s right to build
one home on the property was a reasonable use of his
1
The Fairfax County Department of Planning and Zoning
had recommended that the Commission approve Robertson’s
application but only after considerable discussion by the
staff about the fact that a 1997 noise study submitted by
Robertson did not address future noise levels on the
property. The staff was also concerned about the character
and age of the wooden acoustical wall that separated the
property from the DAAR.
3
property and that granting his requested deviation would
not enhance the ordinance at issue or the Comprehensive
Plan for Fairfax County, Virginia (“Comprehensive Plan”).
The Board of Supervisors of Fairfax County (“the Board”)
subsequently heard Robertson’s application and also denied
it, adopting the comments at the Commission’s hearing.
Robertson then filed a second amended bill of
complaint against the Board and Fairfax County
(collectively, “the defendants”), seeking a declaratory
judgment and injunctive relief. In that pleading,
Robertson acknowledged that, because most of his property
lies within 200 feet of the DAAR, the terms of Zoning
Ordinance §§ 2-414(1)(A) and –414(4) limit the development
of the property to one dwelling unit. Among other things,
Robertson alleged that the Board’s denial of his
application was arbitrary, capricious, and unreasonable,
and bore no substantial relation to public health, safety,
and welfare.
The circuit court sustained a plea in bar and demurrer
filed by the defendants in response to the second amended
bill of complaint. After that ruling, the only claims
remaining in the case were
that the action of the Board in denying
[Robertson’s] application was arbitrary,
capricious and unreasonable and an abuse of
4
discretion; and/or failed to advance a legitimate
public purpose and bore no relationship to the
public health, safety and welfare; and/or failed
to have a rational nexus to any legitimate state
interest or public purpose.
After hearing evidence relevant to those claims, the
circuit court issued an interim letter opinion. The court
ruled, sua sponte, that the provisions of Zoning Ordinance
§ 2-414(4) do not apply to the subject property and that
Robertson, therefore, cannot develop even one dwelling on
his property due to the 200-foot setback requirement unless
the Board approves a deviation from that requirement. The
court believed that the express terms of subsection (4)
limit its application to a “lot.” That term is defined as
“a parcel of land that is designated at the time of
application for a special permit, a special exception, a
Building Permit, or Residential/Non-Residential Use Permit,
as a tract all of which is to be used, developed or built
upon as a unit under single ownership.” Zoning Ordinance
§ 20-300. The court reasoned that, since Robertson’s
property was not the subject of an application for one of
the permits listed in that definition, it was not a “lot”
as that term is defined in Zoning Ordinance § 20-300 and
5
therefore did not come within the purview of Zoning
Ordinance § 2-414(4). 2
After the circuit court made that ruling, the
defendants asked the court to reconsider. In support of
their motion, the defendants presented testimony from Jane
W. Gwinn (”Gwinn”), Zoning Administrator for Fairfax
County, about her interpretation of Zoning Ordinance § 2-
414(4). Gwinn testified that she had consistently
construed the provisions of that subsection to mean that,
if a lot was recorded prior to August 14, 1978, the
effective date of Zoning Ordinance § 2-414, and if
application of the 200-foot setback requirement would
negate all use of the lot, the lot was “grandfathered” and
the landowner could construct one dwelling on the lot
without complying with the 200-foot setback requirement.
Since Robertson’s property satisfied those conditions,
Gwinn indicated that Robertson would have a right to a
building permit allowing construction of one single-family
dwelling. Gwinn noted, however, that, when a landowner,
such as Robertson, wishes to further subdivide a lot, the
additional lots would not be recorded prior to the
2
The court further ruled that the defendants’
proffered evidence showing the development of one single-
family dwelling as a reasonable use of Robertson’s property
was irrelevant.
6
effective date of Zoning Ordinance § 2-414 and the setback
requirement would, therefore, be applicable. In that
situation, the landowner would need to obtain the Board’s
approval of a proffered condition amendment and deviation
under subsection (3) or apply to the board of zoning
appeals for a variance.
Gwinn also explained how she applied the definition of
the term “lot” in the context of Zoning Ordinance § 2-
414(4). She testified that, when determining the
applicability of subsection (4) to a particular parcel of
real estate, the determination is made on the basis that
the landowner will be applying for a building permit. In
Gwinn’s view, that approach brings the parcel within the
meaning of the term “lot.”
After hearing this testimony, the circuit court denied
the defendants’ motion to reconsider. The court’s decision
on this particular issue led it to evaluate the propriety
of the Board’s denial of Robertson’s application from the
perspective that the provisions of Zoning Ordinance § 2-
414(1)(A) prevented any development of the subject property
and that Robertson sought a deviation that would allow him
to build four single-family residences on the property.
That level of development would result in a density lower
7
than what would have been permissible under the R-3 zoning
classification absent the 200-foot setback requirement.
The circuit court subsequently issued a letter
opinion, in which it initially reiterated its prior ruling
regarding the applicability of Zoning Ordinance § 2-414(4). 3
The court then held that Robertson had met his “twin burden
of proving his proffered use of the property was reasonable
and the Board’s rejection of his application was
unreasonable.” Next, the court considered whether the
defendants had produced evidence to establish that the
Board’s rejection of Robertson’s application was fairly
debatable. The court concluded that the defendants had
failed to do so. In the court’s view, the defendants had
“not provided probative evidence demonstrating that DAAR
noise levels at the [p]roperty [were] presently
problematic,” or that “noise levels will be problematic in
the future.” Thus, the court held that the Board’s denial
of Robertson’s application was arbitrary, capricious, and
unreasonable. In a final decree incorporating its letter
3
The court actually issued two letter opinions. It
withdrew the first one after the Board objected, in part,
on the basis that the court was mistaken about the location
of the property. The court initially believed that
Robertson’s property is located outside a road known as the
Washington Beltway when, in fact, it is located inside that
road.
8
opinion, the circuit court remanded Robertson’s application
to the Board for further action consistent with the court’s
letter opinion. The defendants appeal from that judgment.
ANALYSIS
I. Standard of Review
“When a governing body of any locality reserves unto
itself the right to issue special exceptions, the grant or
denial of such exceptions is a legislative function.”
Board of Supervisors v. McDonald’s Corp., 261 Va. 583, 589,
544 S.E.2d 334, 338 (2001) (citing Cole v. City Council of
Waynesboro, 218 Va. 827, 837, 241 S.E.2d 765, 771 (1978)).
In this case, the Board’s authority to grant “[d]eviations”
from the setback requirement of Zoning Ordinance § 2-
414(1)(A) is a legislative function. As such, a
presumption of legislative validity attached to the Board’s
denial of Robertson’s application. Id.; County of
Lancaster v. Cowardin, 239 Va. 522, 525, 391 S.E.2d 267,
269 (1990); City of Richmond v. Randall, 215 Va. 506, 511,
211 S.E.2d 56, 60 (1975).
This presumption of validity remains with the
legislative action as we review the decision of the circuit
court in accordance with the following principles:
[W]e accord the court’s finding, as with the usual
case, a presumption of correctness, but we also give
full credit to the presumption of validity of the
9
legislative action involved in the denial and then,
assimilating the two presumptions, we examine the
record to determine whether the evidence sustains the
court’s finding. In other words, the presumption of
validity of legislative action does not disappear when
a trial court finds that the action is unreasonable;
the presumption accompanies the legislative action
when the latter is brought to this [C]ourt for review,
and it is viable until this [C]ourt holds with the
trial court that the legislative action is
unreasonable.
Board of Supervisors v. Lerner, 221 Va. 30, 34-35, 267
S.E.2d 100, 103 (1980) (internal citation omitted); accord
McDonald’s, 261 Va. at 589, 544 S.E.2d at 338.
II. Presumption of Reasonableness
The presumption of legislative validity that attached
to the Board’s denial of Robertson’s application is a
presumption of reasonableness. McDonald’s, 261 Va. at 590,
544 S.E.2d at 338; Board of Supervisors v. Snell Constr.
Corp., 214 Va. 655, 659, 202 S.E.2d 889, 893 (1974).
“Legislative action is reasonable if the matter in issue is
fairly debatable.” Lerner, 221 Va. at 34, 267 S.E.2d at
102 (citing County of Fairfax v. Parker, 186 Va. 675, 680,
44 S.E.2d 9, 12 (1947)). An issue is “fairly debatable
when the evidence offered in support of the opposing views
would lead objective and reasonable persons to reach
different conclusions.” Board of Supervisors v. Williams,
216 Va. 49, 58, 216 S.E.2d 33, 40 (1975); accord Board of
Supervisors v. Stickley, 263 Va. 1, 7, 556 S.E.2d 748, 751
10
(2002); McDonald’s, 261 Va. at 590, 544 S.E.2d at 339;
Lerner, 221 Va. at 34, 267 S.E.2d at 102. The evidence
must meet both quantitative and qualitative tests.
Williams, 216 Va. at 58, 216 S.E.2d at 40.
We have enunciated the following principles for
determining whether the presumption of reasonableness in a
given case should prevail or has been overcome:
Where presumptive reasonableness is challenged by
probative evidence of unreasonableness, the challenge
must be met by some evidence of reasonableness. If
evidence of reasonableness is sufficient to make the
question fairly debatable, the [legislative action]
‘must be sustained’. If not, the evidence of
unreasonableness defeats the presumption of
reasonableness and the [legislative action] cannot be
sustained.
Snell Constr. Corp., 214 Va. at 659, 202 S.E.2d at 893;
accord Stickley, 263 Va. at 7, 556 S.E.2d at 751; County
Bd. of Arlington County v. Bratic, 237 Va. 221, 227, 377
S.E.2d 368, 371 (1989); Williams, 216 Va. at 58-59, 216
S.E.2d at 40.
III. Discussion
The defendants assigned error to the circuit court’s
finding that the Board’s denial of Robertson’s application
was arbitrary, capricious, and unreasonable. To decide
this issue, we will use the analytical framework utilized
by this Court in Cowardin and Bratic. We do so because the
requested deviation did not involve a challenge to the
11
reasonableness of the current zoning classification
assigned to Robertson’s property. Thus, the application
for a deviation in this case is analogous to the
application for a conditional use permit in Cowardin, 239
Va. at 523, 391 S.E.2d at 268, and the application for a
use permit in Bratic, 237 Va. at 222, 377 S.E.2d at 368.
Accordingly, we will assume, as we did in both of those
cases, that Robertson’s request to deviate from the 200
foot setback requirement by building, with proffered
conditions, four dwelling units is an appropriate use of
his property and that the denial of his application is
probative evidence of unreasonableness. See Cowardin, 239
Va. at 526, 391 S.E.2d at 269; Bratic, 237 Va. at 228, 277
S.E.2d at 371. Thus, the dispositive inquiry is whether
the defendants produced sufficient evidence of
reasonableness to make the Board’s rejection of Robertson’s
request for a deviation fairly debatable. 4 Id.; Cowardin,
239 Va. at 526, 391 S.E.2d at 269.
4
It is important to note that this case did not
involve an application for rezoning. Robertson
acknowledged this fact at one of the Commission’s hearings
and on brief. Additionally, a senior staff coordinator in
Fairfax County’s Department of Planning and Zoning, Peter
H. Braham, testified that Robertson’s application did not
request a change in zoning or an increase beyond the
density allowed in the R-3 zoning classification. Thus,
Robertson did not have to produce evidence showing that the
use of his property for one single-family dwelling was
12
Resolution of the dispositive question turns on the
evidence concerning future noise levels on the subject
property. The defendants and Robertson presented testimony
about the noise levels from experts in the field of
acoustical engineering. Kevin Miller testified on behalf
of Robertson and based his conclusions on a noise study
performed on the property in 1997. Gary E. Ehrlich
performed an acoustical analysis of Robertson’s property in
2002 for the defendants and testified on their behalf.
Miller stated that the exterior noise levels on the
subject property when the 1997 study was conducted were
below Fairfax County’s exterior noise criterion of 65 dBA
Ldn at any ground level. 5 Although Ehrlich used a different
unreasonable. Contra City Council of Virginia Beach v.
Harrell, 236 Va. 99, 102, 372 S.E.2d 139, 141 (1988).
“When a landowner has been denied rezoning and he
challenges the denial, his threshold burden of proof
requires a clear demonstration that ‘the existing zoning
classification is no longer reasonable or appropriate.’ ”
Board of Supervisors v. International Funeral Serv., Inc.,
221 Va. 840, 843, 275 S.E.2d 586, 588 (1981) (emphasis
added) (citing Vienna Council v. Kohler, 218 Va. 966, 976,
244 S.E.2d 542, 548 (1978)).
5
The term “dBa Ldn” refers to the day-night average
sound level measured in decibels for a 24-hour period. Ten
decibels are added to readings made during the period from
10 p.m. until 7 a.m. because humans are more sensitive to
noise at nighttime.
The Comprehensive Plan states that “[n]ew development
should not expose people in their homes, or other noise
sensitive environments to noise in excess of 45 dBA Ldn, or
to noise in excess of 65 dBA Ldn in the outdoor recreation
13
method to measure the noise levels on Robertson’s property
than the one utilized in the 1997 study, he agreed that
there was no appreciable difference between his 2002 noise
level measurements and the 1997 measurements. However,
Ehrlich obtained traffic projections from Fairfax County
and, using those projections in conjunction with his noise
level measurements, he analyzed future noise levels on
Robertson’s property. Ehrlich opined that, in some
locations on the property, future noise levels will exceed
65 dBA Ldn as early as 2010.
Although Miller confirmed that he often examines
future traffic projections and the effect of that traffic
on future noise levels on a given parcel of real estate, he
admitted that the 1997 study did not address future noise
levels on Robertson’s property and was actually a “snapshot
in time as of May of 1997.” However, Braham, the senior
staff coordinator in the department of planning and zoning,
indicated that there is a “submission” requirement stating
that an application for a deviation from the 200-foot
setback provision should include a study addressing
“projected noise levels or projected traffic.” Braham also
areas of homes.” The Comprehensive Plan further provides
that, in order “[to] achieve these standards[,] new
residential development in areas impacted by highway noise
between 65 and 75 dBA Ldn will require mitigation.”
14
testified that future noise levels in Fairfax County is a
concern.
Despite the fact that Robertson offered no evidence
regarding future noise levels on his property and that the
only evidence on this question showed that future noise
levels would exceed the 65 dBA Ldn guideline, the circuit
court concluded that the defendants failed to produce
sufficient probative evidence of reasonableness to make the
Board’s denial of Robertson’s application a fairly
debatable issue. The court reached this conclusion by
rejecting Ehrlich’s testimony because of the methodology
Ehrlich used to measure the noise levels on the property, 6
and because Ehrlich relied on, what the court viewed as,
the “fatally flawed projections of future traffic
increases” on the DAAR prepared by Robert O. Owolabi, Chief
6
The circuit court questioned Ehrlich’s methodology
because he did not measure the noise on the property for a
continuous 24-hour period but instead measured external
noise at 5-minute intervals and then averaged the readings.
In the court’s opinion, the Comprehensive Plan required one
Ldn figure. And, Miller testified that acoustical
engineering practice required continuous, 24-hour
monitoring. For these reasons, the court concluded that
“Ehrlich’s methodology was flawed.” Assuming the court was
correct that the Comprehensive Plan required one Ldn figure
and continuous 24-hour monitoring, the Board had the
discretion to decide whether to adhere to the guidelines in
the Comprehensive Plan or to follow some other reasonable
approach in making its decision on Robertson’s application.
See, Lerner, 221 Va. at 37, 267 S.E.2d at 104.
15
of Technical Analysis and Research of the Fairfax County
Department of Transportation. 7 Disagreeing with the Board,
the court stated that it was not bound to accept the
testimony of Ehrlich and Owolabi because, according to the
court, their testimony had been challenged on cross-
examination.
Relying on this Court’s decision in Stickley, the
defendants argue on appeal that the circuit court failed
“to appreciate the significant difference between a case
challenging a legislative decision, and an ore tenus bench
trial not involving a legislative decision.” The
defendants also claim that the evidence regarding future
noise levels on the property and whether they would exceed
the Comprehensive Plan guideline of 65 dBA Ldn was
sufficient to make the Board’s denial of Robertson’s
application fairly debatable. We agree with the
defendants’ position.
In Stickley, the landowner argued “that, because the
trial court heard the evidence ore tenus, ‘its factual
findings carry the same weight as [a] jury’s verdict.’ ”
7
Owolabi, testifying as an expert in traffic
forecasting and traffic calculations, stated that traffic
levels adjacent to the property would increase from an
“Average Daily Traffic” (“ADT”) of 75,000 vehicles in 2000
to an ADT of 86,945 vehicles in 2005, 100,790 vehicles in
2010, and 111,445 vehicles in 2020.
16
263 Va. at 6, 556 S.E.2d at 751. We rejected that argument
because the case involved legislative action by a board of
supervisors. Id. “In such a case, while we accord the
trial court’s finding the usual presumption of correctness,
we also accord the legislative action a presumption of
validity.” Id.
The factual issue in Stickley was whether a special
use permit allowing the landowner to raise and release game
birds on his farm would create an increased risk that
certain diseases harmful to poultry would spread between
commercial poultry flocks in the county where the landowner
resided. Id. at 5-6, 556 S.E.2d at 750-51. With regard to
that issue, the evidence was “a battle of the experts,” the
landowner having presented testimony from four experts and
the governing body having elicited testimony from one
expert. Id. at 7-8, 556 S.E.2d at 752. The relevant
question, however, was “not who presented the greatest
number of expert witnesses or even who won the battle of
the experts,” but rather “whether there [was] any evidence
in the record sufficiently probative to make a fairly
debatable issue of the . . . decision to deny [the
landowner] a special use permit.” Id. at 11, 556 S.E.2d at
754. We concluded that the testimony of the governing
17
body’s expert about the “ ‘significant risk’ to poultry
from the release of pen-raised game birds” was sufficient
to make the issue fairly debatable. Id.
The same rationale applies in this case. Probative
evidence demonstrated that future noise levels on
Robertson’s property will likely exceed the Comprehensive
Plan guideline. We further note that one of the concerns
initially voiced at the Commission’s hearing dealt with
future noise levels and whether they would exceed 65 dBA
Ldn. Yet, the 1997 study submitted by Robertson did not
address future noise levels on his property. And, his
proffers dealt only with building techniques and materials
needed to achieve the guideline of 45 dBA Ldn for interior
noise levels in the proposed dwellings. None of the
proffers included measures designed to reduce exterior
noise even though the 1997 study stated that the 8-foot
high wooden acoustical fence running along the DAAR
provided only 3 dBA attenuation of the DAAR traffic noise
at ground level on the property.
As we said in Stickley, the question is not “who won
the battle of the experts.” 263 Va. at 11, 556 S.E.2d at
754. The relevant inquiry is “whether there [was] any
evidence in the record sufficiently probative to make a
fairly debatable issue of the . . . decision to deny”
18
Robertson’s application for a deviation from the setback
requirement. Id. (emphasis added). Having examined the
record, we find sufficient evidence of reasonableness to
make the Board’s rejection of Robertson’s request for a
deviation a fairly debatable issue, i.e. the evidence
“would lead objective and reasonable persons to reach
different conclusions.” Williams, 216 Va. at 58, 216
S.E.2d at 40. Thus, we hold that the circuit court erred
in finding that the Board’s denial was arbitrary,
capricious, and unreasonable.
We turn now to the defendants’ two remaining
assignments of error. First, the defendants assert that
the circuit court erred in ruling that Zoning Ordinance
§ 2-414(4) did not apply to Robertson’s property and that
the 200-foot setback requirement prevented any development
on the property unless the Board approved a deviation. In
the final assignment of error, the defendants contend that
the circuit court erred in ruling, sua sponte, that the
Board’s denial of Robertson’s application constituted
piecemeal downzoning.
With regard to the first issue, the defendants argue
that Robertson never disputed that the provisions of Zoning
Ordinance § 2-414(4) apply to his property and, pursuant to
that subsection, he can construct one single-family
19
dwelling on the property. We agree. In fact, Robertson
affirmatively pled in the second amended bill of complaint
that “the literal terms of Section 2-414 would limit the
property to the development of one dwelling unit.”
Moreover, Robertson entered into a stipulation stating that
“[t]he parties agree that Richard M. Robertson is permitted
to build one single-family home on the subject property by
right.”
Since Robertson never alleged that the Board had
misconstrued either Zoning Ordinance § 2-414(4) or the term
“lot,” the circuit court erred in deciding issues never
pleaded or claimed by Robertson. “It is firmly established
that no court can base its judgment or decree upon facts
not alleged or upon a right 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, 229
(1981) (citing Potts v. Mathieson Alkali Works, 165 Va.
196, 207, 181 S.E. 521, 525 (1935)); accord, Jenkins v. Bay
House Assoc., 266 Va. 39, 43, 581 S.E.2d 510, 512 (2003).
“A litigant’s pleadings are as essential as his proof, and
a court may not award particular relief unless it is
substantially in accord with the case asserted in those
pleadings.” Id.
20
Furthermore, we are persuaded by the interpretation
given to the provisions of Zoning Ordinance § 2-414(4) and
the definition of the term “lot” by the Board and Gwinn.
Their consistent interpretation of these provisions is
entitled to great weight. See Masterson v. Board of Zoning
Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 733 (1987)
(“consistent administrative construction of an ordinance by
the officials charged with its enforcement is entitled to
great weight”); Rountree Corp. v. City of Richmond, 188 Va.
701, 712, 51 S.E.2d 256, 261 (1949) (“construction long
placed upon statutes without protest from officials charged
with their enforcement is entitled to great weight”).
With regard to the final assignment of error, we hold,
that, like the preceding issue, Robertson did not claim or
plead that the Board’s denial constituted piecemeal
downzoning. Although the circuit court stated that it was
not addressing that issue, the court nevertheless concluded
that the Board’s application of Zoning Ordinance § 2-414
was “in-fact impermissible piecemeal downzoning.” Thus, to
the extent the circuit court decided this issue, it was
error to do so since Robertson did not assert such a claim.
See Jenkins, 266 Va. at 43, 581 S.E.2d at 512.
CONCLUSION
21
For these reasons, we conclude that the Board’s denial
of Robertson’s proffered condition amendment application
seeking a deviation from the 200-foot setback requirement
was not arbitrary, capricious, and unreasonable. The
defendants presented sufficient evidence of reasonableness
to make the Board’s denial of Robertson’s application a
fairly debatable issue. The circuit court erred in finding
otherwise. The circuit court also erred in deciding two
issues never pleaded or claimed by Robertson. Accordingly,
we will reverse the judgment of the circuit court and enter
judgment in favor of the defendants.
Reversed and final judgment.
22