Turner v. Board of County Supervisors

Present: All the Justices

LEA TURNER, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 010580 March 1, 2002

BOARD OF COUNTY SUPERVISORS OF
PRINCE WILLIAM COUNTY, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge

In this appeal, the primary issues we consider are

whether a zoning ordinance enacted by a board of county

supervisors constituted piecemeal downzoning and, if so,

whether the county and its board of supervisors rebutted the

property owners' evidence that the downzoning was not

justified by a change in circumstances substantially affecting

the public health, safety, or welfare.

I.

The Board of County Supervisors of Prince William County

(the Board) enacted a zoning ordinance that became effective

on July 21, 1998. This zoning ordinance changed the prior

zoning classification for several parcels of property in

Prince William County, including two parcels owned by Lea

Turner and one parcel owned by Anne Moncure Wall. Wall and

Turner filed separate amended bills of complaint for

declaratory judgment and injunctive relief against the Board

and the County. Wall and Turner asserted in their respective

bills, among other things, that the 1998 zoning ordinance
constituted unlawful piecemeal downzoning. The Board and the

County denied these assertions.

The circuit court consolidated the bills of complaint and

at the conclusion of an ore tenus hearing, ruled, among other

things, that the challenged zoning ordinance constituted

piecemeal downzoning. However, the court held that future

traffic conditions constituted a change in circumstances

substantially affecting the public health, safety, or welfare,

which, in essence, permitted the County to enact the ordinance

that reduced the zoning classification of the affected

properties. In determining whether there had been a change in

circumstances, the court also considered the circumstances

that have arisen since 1958, the date that the County enacted

its first zoning ordinance.

The property owners appeal and the County assigns cross-

error to certain rulings made by the circuit court and

embodied in its final judgment.

II.

In 1942, Anne Wall acquired two parcels of land in Prince

William County, one parcel consisting of 24 acres, and the

other parcel consisting of 30 acres. Lea Turner and her late

husband acquired a parcel of land in Prince William County

around 1953 that consisted of 267 acres.

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 The parcels owned by Wall and Turner (collectively the

property owners) are located in a neighborhood of

approximately 1,200 acres in the Dumfries Magisterial

District. Thirteen residential subdivisions have been

developed in the neighborhood, and these subdivisions surround

the property owners' land. The property owners' land, with

few exceptions, constitutes the only land in the neighborhood

that has not been developed.

In 1958, the Board enacted Prince William County's first

zoning ordinance. The property owners' land enjoyed a zoning

classification that permitted them to construct single-family

dwellings on minimum lots of 10,000 square feet. In 1962, the

Board amended its zoning ordinance. In 1982, and again in

1991, the Board repealed all prior zoning ordinances and

enacted new ordinances. Each of these zoning ordinances

permitted the landowners to subdivide their property into lots

with a minimum size of 10,000 square feet.

In 1998, the Board enacted a new zoning ordinance that

changed the zoning classification of only 492.4 acres out of

the County's entire land mass of more than 220,000 acres.

This zoning ordinance affected "less than [one] percent of the

total acreage of the [C]ounty." The 1998 zoning ordinance

limited residential development of the affected properties by

imposing a minimum lot size of one acre. The property owners

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own 65% of the land that was affected by this change in zoning

classification.

The 1998 zoning ordinance substantially reduced the

number of lots the property owners could develop on their

parcels. The circuit court found that "[t]he feasibility

studies indicate that the landowners could build some 419 lots

[on their property under the 1991 zoning ordinance], but if

they are downzoned . . . then [the property owners] can only

build up to 199 lots."

The Board enacted its 1998 zoning ordinance because it

was concerned about traffic and the effect that residential

development would have upon the environment. Tom Fahrney,

Chief of Transportation Planning for the County, testified

that there are only three roads that provide access to the

property owners' land and that vehicular traffic on these

roads currently exceeds their "rated traffic capacity." He

stated that these roads would have to be substantially

improved if the property owners' land was developed as

permitted by the 1991 zoning ordinance because these roads are

inadequate and cannot satisfy the increase in future traffic.

However, Fahrney conceded that these roads were either already

in existence or under construction in 1991.

Several witnesses testified that since 1990 or 1991,

streams and a pond in the neighborhood have been adversely

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affected by logging operations that were conducted on Turner's

property. Madan Mohan, a County engineer who has experience

in the fields of hydrology, hydraulics, and water resources,

qualified as an expert witness on the subject of stormwater

management. He testified that as population increases in a

subdivision, the environmental problems such as soil erosion

increase, especially affecting the areas downstream. He also

testified that this information was known to County employees

before 1991.

III.

A.

The Board and the County assert in an assignment of

cross-error that the circuit court erred in concluding that

the 1998 zoning ordinance constituted piecemeal downzoning.

Continuing, the County contends that the evidence does not

support the circuit court's conclusion that the zoning change

was piecemeal. The County also points out that the rezoning

"was not to a density below that recommended by [the County's]

comprehensive plan." The property owners respond, and we

agree, that the circuit court did not err in concluding that

the 1998 zoning ordinance constituted piecemeal downzoning.

We have stated several familiar principles that are

pertinent to our resolution of this appeal. In a case

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involving a comprehensive amendment to a comprehensive zoning

ordinance, we stated:

"The legislative branch of a local government in the
exercise of its police power has wide discretion in
the enactment and amendment of zoning ordinances.
Its action is presumed to be valid so long as it is
not unreasonable and arbitrary. The burden of proof
is on him who assails it to prove that it is clearly
unreasonable, arbitrary or capricious, and that it
bears no reasonable or substantial relation to the
public health, safety, morals, or general welfare.
The court will not substitute its judgment for that
of a legislative body, and if the reasonableness of
a zoning ordinance is fairly debatable it must be
sustained."

Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d

390, 395 (1959). *

In Fairfax County v. Snell Corp., 214 Va. 655, 658, 202

S.E.2d 889, 893 (1974), we enumerated certain factors that we

consider when determining whether the adoption of a zoning

ordinance constitutes piecemeal downzoning. We stated that

generally, a piecemeal zoning ordinance is "one initiated by

the zoning authority on its own motion; one selectively

addressed to landowners' single parcel and an adjacent parcel;

*
In Board of Supervisors v. Carper, a county amended its
zoning ordinance. We held that the amendment, which reduced
the number of residential lots that could be created on
parcels owned by property owners, was "unreasonable and
arbitrary and that it [bore] no relation to the health,
safety, morals or general welfare of the owners or residents
of the area so zoned." 200 Va. at 662, 107 S.E.2d at 396-97.
The litigants in Carper did not request that this Court
adjudicate the issues in that appeal using principles that are
applied in a downzoning case.

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and one that reduces the permissible residential density below

that recommended by a duly-adopted [m]aster [p]lan." Id.

Even though these factors are not exhaustive, and other

factors may be considered when determining whether a zoning

ordinance is piecemeal, we need not look beyond these factors

in our resolution of this appeal.

Applying the principles we enunciated in Snell, we hold

that the circuit court correctly determined that the County's

1998 zoning ordinance constituted piecemeal downzoning. The

1998 zoning ordinance was initiated by the Board; the

ordinance targeted certain property; and the ordinance reduced

the potential residential density of the property owners' land

below that recommended by the County's duly-adopted master

plan. As the circuit court properly stated:

"This downzoning is not comprehensive, and there is
absolutely no evidence that it was ever intended to
be comprehensive. It does not include a review of
the entire [C]ounty. It does not include a review
of any known division of the [C]ounty, such as a
magisterial district. It does not include a review
by the board of any known region or zone or
designated area of the [C]ounty.
"It involves simply a review of a very small
piece of land area of the [C]ounty. . . .
"For the [County] to argue that the downzoning
is anything but piecemeal ignores the reality."

The circuit court also found, as a matter of fact, that

"the purpose of the [B]oard [of County Supervisors] was to

target the [property owners'] property to reduce the density

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of the only remaining undeveloped property in the area of the

downzoning." Indeed, the County's own witness, Susan Roltsch,

an employee in the County's Department of Economic

Development, testified that the County's planning office

recommended that the County downzone the property owners' land

after another property owner submitted a subdivision plan for

a parcel in the neighborhood where the property owners' land

is located. And we note that Roltsch, who also qualified as

an expert witness on the subjects of zoning and planning,

acknowledged that the 1998 zoning ordinance did not affect

properties in other parts of the County.

Moreover, the area affected by the County's 1998 zoning

ordinance affected only .22% of the land in the County. The

County downzoned slightly more than 492 acres of the County's

entire land mass of more than 220,000 acres. Sixty-five

percent of the land adversely affected by the 1998 zoning

ordinance belonged to the property owners.

We recognize that the County argued in the circuit court

and argues here that its 1998 zoning ordinance, which requires

a minimum lot size of one acre on the property owners' land,

is consistent with the County's comprehensive plan land use

designation that permits one to four single family residential

units per acre in areas designated "Suburban Residential Low."

However, we agree with the circuit court's determination that

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the 1998 zoning ordinance had the practical effect of

prohibiting the property owners from developing their land

consistent with the density rate contained in the

comprehensive plan. As the circuit court explained, due to

the County's longstanding land use regulations, the minimum

size of a residential lot that the property owners could

create on their property under the 1998 zoning ordinance would

exceed one acre.

We also note that the property owners' expert witnesses

testified that under the 1998 zoning ordinance, the property

owners' land could not be developed to achieve a density of

one lot per acre. Additionally, Thomas Eitler, the County's

expert witness, conceded that the property owners' land

"probably" could not be developed at a density of one lot per

acre.

B.

In Snell, we considered for the first time "the standard

to be applied in judicial review of the validity of a zoning

ordinance, enacted on motion of the zoning authority, which

effects a piecemeal reduction of permissible residential

density (downzoning)." 214 Va. at 656, 202 S.E.2d at 891. We

articulated the following test in Snell that is equally

pertinent here:

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 "With respect to the validity of a piecemeal
downzoning ordinance such as that here involved, we
are of opinion that when an aggrieved landowner
makes a prima facie showing that since enactment of
the prior ordinance there has been no change in
circumstances substantially affecting the public
health, safety, or welfare, the burden of going
forward with evidence of such mistake, fraud, or
changed circumstances shifts to the governing body.
If the governing body produces evidence sufficient
to make reasonableness fairly debatable, the
ordinance must be sustained. If not, the ordinance
is unreasonable and void."

214 Va. at 659, 202 S.E.2d at 893 (footnote omitted) (emphasis

added). We applied this test in Virginia Beach v. Virginia

Land Investment Association, 239 Va. 412, 416, 389 S.E.2d 312,

314 (1990), and in Seabrooke Partners v. City of Chesapeake,

240 Va. 102, 105-06, 393 S.E.2d 191, 193 (1990). This test

"promotes the policy and purposes of the zoning
statutes. While the landowner is always faced with
the possibility of comprehensive rezoning, the rule
we have stated assures him that, barring mistake or
fraud in the prior zoning ordinance, his legitimate
profit prospects will not be reduced by a piecemeal
zoning ordinance reducing permissible use of his
land until circumstances substantially affecting the
public interest have changed. Such stability and
predictability in the law serve the interest of both
the landowner and the public."

214 Va. at 659, 202 S.E.2d at 893.

The circuit court held that the County's 1958 zoning

ordinance was the zoning ordinance that must be deemed the

"prior ordinance" when determining whether the property owners

established a prima facie showing that between the enactment

of the prior ordinance and the 1998 ordinance there has been

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no change in circumstances substantially affecting the public

health, safety, or welfare. The circuit court also used the

1958 zoning ordinance as the "prior ordinance" in ascertaining

whether the County met its burden of going forward with the

evidence that there had been a change in circumstances

substantially affecting the public health, safety, or welfare.

The property owners contend that the circuit court should

have used the County's 1991 zoning ordinance to determine

whether the requisite change in circumstances had occurred and

whether the County had met its evidentiary burden. The County

responds that the circuit court did not err in considering the

1958 zoning ordinance as the "prior ordinance" in the

application of the Snell test. The County argues that the

1958 ordinance is the prior ordinance because, consistent with

this Court's precedent, the 1958 ordinance "was characterized

by specific legislative deliberation about the zoning that was

subsequently changed by the downzoning."

We disagree with the County. In each of our prior cases

involving ordinances which downzoned properties, Snell,

Henrico County v. Fralin & Waldron, Inc., 222 Va. 218, 278

S.E.2d 859 (1981), Virginia Land Investment Association, and

Seabrooke Partners, we did not have to consider which zoning

ordinance constituted the "prior zoning ordinance" within the

meaning of the test that we established in Snell. In this

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case, we hold that the circuit court erred when it used the

1958 zoning ordinance as the "prior zoning ordinance" in the

application of the test we established in Snell.

The County's 1982 zoning ordinance contained the

following language that expressly repealed the 1958 zoning

ordinance:

"The Zoning Ordinance of Prince William County as
originally enacted September 1, 1958, and
subsequently amended heretofore, is hereby repealed
except those provisions expressly retained herein."

The County's 1991 zoning ordinance contained the following

language that expressly repealed the 1982 zoning ordinance:

"The Zoning Ordinance of Prince William County,
as herein presented, is hereby adopted on October
22, 1991 and becomes effective at 5:00 p.m. on
November 21, 1991. The Zoning Ordinance of Prince
William County as enacted May 4, 1982, and
subsequently amended heretofore, is simultaneously
repealed, except those provisions expressly retained
herein, upon this chapter taking effect."

We hold that the appropriate ordinance that we must consider

in our application of the Snell test is the 1991 zoning

ordinance because that was the last ordinance adopted by the

Board before it enacted the 1998 ordinance that changed the

zoning classification of the property owners' land.

C.

The property owners contend that once they established a

prima facie showing that since the enactment of the prior

ordinance, the 1991 zoning ordinance, there had been no change

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in circumstances substantially affecting the public health,

safety, or welfare, the burden of going forward with evidence

of a substantial change in circumstances shifted to the

County. The property owners argue that the County failed to

show a change in circumstances between the enactment of the

1991 zoning ordinance and the enactment of the 1998 zoning

ordinance. Continuing, the property owners assert that

because the County failed to present such evidence, the

reasonableness of the 1998 zoning ordinance was not fairly

debatable and, therefore, the circuit court should have

invalidated that zoning ordinance.

Responding, the County contends that it presented

testimony about the impact that increased residential

development would have upon the traffic in the neighborhood

where the property owners' land is situated and that changed

traffic conditions constituted a substantial change in

circumstances affecting the public health, safety, or welfare.

Thus, the County contends that it produced evidence to make

reasonableness of the 1998 zoning ordinance fairly debatable,

and the circuit court properly sustained the zoning ordinance.

We disagree with the County.

We hold that as a matter of law the County failed to

present sufficient evidence to support a finding of a change

in circumstances regarding the impact of increased traffic

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between the time the Board enacted its zoning ordinance in

1991 and the time it enacted the 1998 zoning ordinance.

The circuit court ruled that if it

"had to decide if the changes in traffic or road
conditions were substantial based upon the evidence
presented by the [County] as to the quantitative
changes and conditions in the past, whether it was
from 1958 or [19]82 or [19]91, there is simply no
evidence.
"Perhaps that's because it was not until the
1980s that [the Virginia Department of
Transportation] and the [C]ounty started measuring
actual traffic counts, so the historical data may be
limited. But for whatever reason, there's just no
evidence presented as to the traffic count in 1958
up to 1991, up to 1996, 1997, or any other previous
time, except at the time of downzoning in
1998 . . . ."

The County's own witnesses gave testimony that indicated

there was no change in circumstances regarding the impact of

increased traffic upon the County between 1991 and 1998. The

County's chief of transportation planning, Fahrney, testified

that there were no historical traffic development studies for

the neighborhood where the property owners' land is located.

He also testified that the County's current measure of

traffic, ten vehicle trips per day per single-family dwelling,

has been in effect since 1985, a figure that the County

admitted it used in its Design and Construction Standards

Manual in both 1991 and 1998 for street design and

construction. Fahrney stated that the streets that serve the

neighborhood where the property owners' land is located had

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already been constructed in 1991 or were under construction in

1991.

Roltsch testified that between 1991 and 1998, there were

no changes in the method of ingress and egress to the property

owners' land. She also indicated that the County was aware in

1991 of the minimum and maximum number of residential units

that could be constructed in the neighborhood where the

property owners' land is located. The County also used the

same standards in 1991 and 1998 to calculate the rate of

vehicular traffic in this neighborhood. Thus, the County had

the ability to calculate any necessary traffic generation

rates in both 1991 and 1998.

Because the County failed to meet its burden of going

forward with evidence of a change in circumstances regarding

traffic between 1991 and 1998, the reasonableness of the

County's 1998 zoning ordinance that downzoned the property

owners' land is not fairly debatable. Thus, the 1998 zoning

ordinance cannot be sustained.

We recognize that the circuit court found that some roads

in the neighborhood where the property owners' land is

located are used in excess of their "rated traffic capacity,"

and if the property owners develop their property as permitted

by the 1991 zoning ordinance, the County would have to make

extensive improvements to existing roads. These improvements

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"could involve even condemnation of existing residential

properties to expand the right of ways." The circuit court

ruled that "[w]hile this evidence deals only with the

potential impact of future development on the traffic

conditions existing in 1998 at the time of the downzoning

. . . this is, in fact, a valid consideration for this

[c]ourt."

We hold, however, that the circuit court erred by relying

upon the future impact of future residential development on

traffic conditions because that is not a permissible factor

that a court may consider in a piecemeal downzoning case.

Rather, as we have already stated, once an aggrieved landowner

establishes a prima facie case under the Snell test, the

proper inquiry for a court is whether the County presented

evidence that between the enactment of the prior zoning

ordinance and the time of the downzoning, there has been a

change in circumstances substantially affecting the public

health, safety, or welfare. The County is not permitted to

satisfy this evidentiary burden by relying upon the potential

impact of future residential development on traffic

conditions.

D.

The circuit court ruled that the property owners had made

a prima facie showing that there had been no change in

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circumstances relating to the environment substantially

affecting the public health, safety, or welfare between the

enactment of the 1958 ordinance and the enactment of the 1998

ordinance. The County asserts, however, in an assignment of

cross-error, that it presented sufficient evidence to support

a conclusion that a change of circumstances had occurred

relating to environmental concerns and, thus, the

reasonableness of its 1998 zoning ordinance was fairly

debatable and, thus, must be sustained. We disagree with the

County.

The circuit court considered testimony from expert

witnesses presented by the County that the development of the

property as permitted by the 1991 zoning ordinance would

result in increased runoff of water with the potential

environmental impact on surrounding properties of erosion and

silting of streams and watersheds. The court also considered

evidence that logging operations on Turner's property, a less

intrusive use than grading and developing the property for

residential subdivisions, had caused siltation and erosion on

adjoining properties. And, the court also considered the

impact that the Chesapeake Bay Preservation Act, Code §§ 10.1-

2100, et seq., and the related adoption of Best Management

Practices mandatory requirements in 1989 had upon the County.

However, the circuit court concluded

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 "the [c]ourt finds that really nothing has changed
in terms of the environment itself. It does not
represent a change, and more importantly, it does
not represent a change that can be considered
substantial.
"The fact is, the [C]ounty has offered no
measurements of any changes from 1958 to 1998 that
show quantitative changes in the environment."

The court also held that while the County has "proven the

general principle that residential development means erosion

and runoff, and secondly, that the more dense the development

the more the runoff, [the County has] failed to produce any

quantitative evidence that the development of the property

will . . . compound the problem."

We have reviewed the evidence of record, and we conclude

that the County failed to establish a change in circumstances

substantially affecting the public health, safety, or welfare

regarding environmental concerns between 1991 and 1998. The

record is simply devoid of evidence sufficient to satisfy the

necessary legal standard in this appeal. Even though the

County produced evidence from property owners who lived in the

neighborhood that the amount of silt had increased in

surrounding streams and erosion had occurred, as the circuit

court properly concluded, the County failed to establish that

these changes substantially affected the public health,

safety, or welfare.

IV.

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 In conclusion, we hold that the circuit court correctly

held that the County's 1998 ordinance constitutes piecemeal

downzoning, and we will affirm that portion of the court's

judgment. We hold, however, that the circuit court erred in

its conclusion that it was required to use the County's 1958

zoning ordinance as the "prior ordinance" when the court

applied the Snell test. The ordinance that the court should

have considered was the County's 1991 zoning ordinance.

We further hold that when the correct ordinance is

considered, the property owners made a prima facie showing

that between the enactment of the 1991 zoning ordinance and

the enactment of the 1998 zoning ordinance, there had been no

change in circumstances substantially affecting the public

health, safety, or welfare. The County failed to satisfy its

burden of demonstrating that there was a change in

circumstances substantially affecting the public health,

safety, or welfare between 1991 and 1998. Hence, on this

record, the County failed to produce sufficient evidence to

make the reasonableness of the 1998 zoning ordinance fairly

debatable. Therefore, we will enter a declaration that the

County's 1998 zoning ordinance is void, and the property

owners are entitled to develop their property as permitted by

the County's 1991 zoning ordinance.

Affirmed in part,

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 reversed in part,
and final judgment.

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