JEFFERSON GREEN UNIT OWNERS v. Gwinn

Present: All the Justices

JEFFERSON GREEN UNIT OWNERS
ASSOCIATION, INC.

v. Record No. 002574 OPINION BY JUSTICE CYNTHIA D. KINSER
September 14, 2001
JANE W. GWINN, FAIRFAX COUNTY
ZONING ADMINISTRATOR, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge

This appeal involves the question whether a zoning

proffer that provides recreational facilities by requiring

payment of membership dues in a private recreational

association violates the constitutional provision

prohibiting special legislation and infringes upon “freedom

of association.” Although we conclude that the circuit

court erred in finding the proffer unconstitutional, we

will affirm the court’s judgment requiring a condominium

unit owners association to re-establish its membership in

the recreational facility and to pay membership dues. We

also conclude that the circuit court correctly determined

that the proffer does not violate the limitation in Code

§ 15.2-2297(A)(v).

I. FACTS AND MATERIAL PROCEEDINGS

Jefferson Green Unit Owners Association, Inc.

(Jefferson Green), is a condominium unit owners association

whose membership is comprised of the owners of condominiums
in the complex known as Jefferson Green Condominium, which

is located in Fairfax County. In 1976, the Fairfax County

Board of Supervisors (the Board) approved a rezoning

application for the parcel of land upon which the

condominium complex is situated. The application included

voluntary, written proffers by the owner of the property.

The Board accepted those proffers pursuant to the authority

granted in former Code § 15.1-491(a). Included in the

proffers was a condition that “there will be provided, at

the time of construction of the project, not less than the

on-site recreational facilities shown on the Development

Plan, including tot lot, multi-purpose court and swimming

pool complex . . . .”

In 1981, the developer, who had purchased the subject

property in 1979, submitted a proffered condition amendment

(PCA) seeking further changes in the development plan

approved for the condominium complex. In pertinent part,

Proffer No. 3 addressed the requirement of on-site

recreational facilities:

In substitution for the on-site recreation
facilities previously proffered the following
will be provided:

a. Pursuant to agreement with the Bren Mar Park
Recreation Association, rehabilitation of the
facilities of that Association within 180 days of
approval of this application.

2
 b. Purchase of one membership in the Association
for each dwelling unit in this development, and
provision of these memberships at no charge to
each individual unit and/or the condominium
association associated therewith, in accordance
with the Virginia Condominium Act, other than
annual dues which shall be paid by the
condominium unit Owner[s] Association.

c. Funds paid to Bren Mar Park Recreation
Association shall be expended for the renovation
and improvement of the swimming pool, bath house,
tennis courts, and parking lot as determined by
the Board of Directors of the Bren Mar Park
Recreation Association . . . .

The Board subsequently approved the developer’s PCA,

including Proffer No. 3, pursuant to Code § 15.1-491(a).

In accordance with Proffer No. 3, the developer paid

the initial membership charge for each condominium unit,

and Jefferson Green paid the required annual dues to Bren

Mar Park Recreation Association (Bren Mar) until 1999. 1 As

a result of Jefferson Green’s refusal to pay the 1999 dues,

Jane W. Gwinn, Fairfax County Zoning Administrator (the

1
In 1991, Jefferson Green asked the director of
Fairfax County’s zoning evaluation division whether, under
the terms of Proffer No. 3, Jefferson Green could terminate
its membership in Bren Mar. The director advised Jefferson
Green that the requested action could not be undertaken
without a PCA changing the terms of Proffer No. 3. In
1996, after Jefferson Green had discontinued its membership
in Bren Mar, Fairfax County’s zoning administrator ordered
Jefferson Green to re-establish that membership and
reiterated that a PCA would be necessary to change the
terms of Proffer No. 3. Jefferson Green submitted an
application for a PCA in 1997, but the parties dispute
whether that application was ever completed.

3
Zoning Administrator), commenced a suit against Jefferson

Green. In that suit, the Zoning Administrator sought a

declaratory judgment that Jefferson Green was in violation

of Proffer No. 3 and Fairfax Zoning Ordinance § 18-204(3). 2

She also asked the circuit court to enter an injunction

requiring Jefferson Green to re-establish membership in

Bren Mar and to remit all unpaid annual dues. Jefferson

Green answered the suit and also filed a cross-bill,

requesting the court to declare Proffer No. 3 void as a

matter of public policy and in violation of Code §§ 15.2-

2297 and –1102.

After considering the parties’ memoranda and argument,

the circuit court determined that Code § 15.2-2297 does not

apply to Fairfax County and that, therefore, Proffer No. 3

does not violate subsection (A)(v) of that statutory

provision. However, the court concluded that Proffer No. 3

is “private legislation” that “create[s] the type of

economic favoritism strictly forbidden by the special-law

prohibitions of the Virginia Constitution.” The court also

stated that Proffer No. 3 is tantamount to “forced

2
Fairfax Zoning Ordinance § 18-204(3) provides that
“proffered conditions shall become a part of the zoning
regulations applicable to the property in question, unless
subsequently changed by an amendment to the Zoning Map, and
such conditions shall be in addition to the specific

4
association” and that a compelling governmental interest

had not been established to justify the government’s

“dictat[ing] membership into a private organization.”

Nevertheless, the circuit court held that Proffer No. 3

“must be enforced because Jefferson Green requested and/or

consented to [its] adoption” by virtue of its status as the

successor-in-interest to the developer who had asked for

the zoning amendment and submitted Proffer No. 3. The

court concluded that the developer’s consent is binding on

Jefferson Green and waived any attack on the

constitutionality of Proffer No. 3.

In an order incorporating its letter opinion, the

circuit court found Jefferson Green in violation of Proffer

No. 3. Accordingly, the court directed Jefferson Green to

re-establish membership in Bren Mar, to pay and to continue

to pay all membership dues owed to Bren Mar, and to refrain

from any future violation of Proffer No. 3. The court also

dismissed Jefferson Green’s cross-bill with prejudice.

II. ANALYSIS

Jefferson Green assigned three errors to the circuit

court’s decision, and the Zoning Administrator filed two

assignments of cross-error. We will address only Jefferson

regulations set forth in this Ordinance for the zoning
district in question.”

5
Green’s assignment of error regarding the court’s finding

that Code § 15.2-2297 does not apply to Fairfax County and

the Zoning Administrator’s assignment of cross-error

challenging the court’s conclusion that Proffer No. 3 is

unconstitutional.

A. CODE § 15.2-2297

When the property upon which Jefferson Green is

situated was rezoned in 1976, Code § 15.1-491(a) allowed

counties in which the urban county executive form of

government was in effect to adopt, as part of an amendment

to a zoning map, reasonable conditions that had been

proffered in writing by the owner of the property which was

the subject of the proposed zoning map amendment. 3 In 1978,

the General Assembly enacted Code § 15.1-491.2 as part of

the 1978 Va. Acts ch. 320. 4 That Code section provided that

a zoning ordinance may include voluntary written proffers

by the owner of the subject property as part of a rezoning

or amendment to a zoning map, but subsection (v) of Code §

15.1-491.2 prohibited the acceptance of a proffer

containing a condition that required “payment for or

3
Code § 15.1-491 was repealed in 1997. The language
pertinent to this appeal contained in Code § 15.1-491(a)
was re-codified without any relevant changes as Code
§ 15.2-2303(A). Hence, we will refer to Code § 15.2-
2303(A)

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construction of off-site improvements.” However, Clause 2

of the 1978 Va. Acts ch. 320 stated:

[T]he provisions of this act shall not be
effective as to those counties, cities or towns
specified in paragraph (a) of § 15.1-491[, which
includes counties that have the urban county executive
form of government,] unless and until adopted in whole
or in part by amendment of the zoning ordinance. The
provisions of this act are permissive and shall not be
construed to limit or restrict the powers otherwise
granted to any county, city or town, nor to affect the
validity of any ordinance adopted by any such county,
city or town which would be valid without regard to
this act.

Since Proffer No. 3 provides for the expenditure of

funds to renovate and improve the off-site recreational

facilities located at Bren Mar, Jefferson Green claims that

Proffer No. 3 violates the prohibition against payment for

off-site improvements contained in § 15.2-2297(A)(v). The

Zoning Administrator disagrees and asserts that the

restrictions in § 15.2-2297(A) do not apply to Fairfax

County. Instead, the Zoning Administrator contends that

Fairfax County accepts proffers pursuant to Code § 15.2-

2303, which does not include the limitation at issue. She

further argues that Fairfax County has never adopted any of

the provisions of Code § 15.2-2297 or its predecessor

statute, Code § 15.1-491.2. We agree with the Zoning

Administrator.

4
Code § 15.1-491.2 was repealed in 1997 and re-

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 As the circuit court noted, it is not disputed that

Fairfax County has adopted the urban county executive form

of government. Pursuant to the terms of Clause 2 of the

1978 Va. Acts ch. 320, the provisions of that act, which

included former Code § 15.1-491.2, were not “effective as

to those counties . . . [having that form of government]

unless and until adopted in whole or in part by amendment

of the zoning ordinance.” Thus, the provisions of Code

§ 15.1-491.2 did not apply to Fairfax County unless it

adopted them.

In contrast, Code § 15.2-2303(A), like its predecessor

Code § 15.1-491(a), which was in effect when the Board

accepted Proffer No. 3, specifically addresses the

acceptance of proffers by counties that have adopted the

urban county executive form of government. Unlike Code

§ 15.2-2297(A), § 15.2-2303(A) does not contain a

prohibition against payment for off-site improvements.

Neither did former Code § 15.1-491(a). Contrary to

Jefferson Green’s position, we do not find any conflict

between the provisions of Code §§ 15.2-2297(A) and –

2303(A), or between their respective predecessor statutes.

However, Jefferson Green argues that the provisions of

Code § 15.2-2297(A) control Fairfax County’s acceptance of

codified as Code § 15.2-2297(A).

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proffers because the county adopted those provisions when

it enacted Article 1, Part 2, § 1-200(15) of the

Constitution of the Fairfax County Zoning Ordinance. That

section states, in order “to promote the health, safety and

general welfare of the public and to implement the adopted

comprehensive plan for the orderly and controlled

development of the County,” the Zoning Ordinance is

designed, among other things, “to accomplish all other

objectives and exercise all other powers set forth in

Article 7, Chapter 22, Title 15.2 of the Code of Virginia.”

We disagree with Jefferson Green.

Section 1-200 merely recites the purpose and intent of

the Fairfax County Zoning Ordinance. It is not an

affirmative adoption of any provision of Article 7, Chapter

22, Title 15.2, in particular the limitation in Code

§ 15.2-2297(A)(v). In addition, Article I, Part 4, § 1-400

of the Fairfax County Zoning Ordinance makes the text of

that ordinance applicable “to any parcel covered by a

previous grant of zoning with proffered conditions pursuant

to [Code §] 15.2-2303 . . . .” (Emphasis added.)

Further evidence of the fact that Fairfax County has

never adopted the provisions of Code § 15.2-2297(A) is

found in the resolutions accepting the original rezoning in

1976 and the PCA in 1981. In both instances, the Board

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stated that its approval was pursuant to Code § 15.1-

491(a), now Code § 15.2-2303(A). Thus, we conclude Fairfax

County accepts proffers pursuant to the authority granted

in Code § 15.2-2303(A), and previously did so under the

provisions of former Code § 15.1-491(a). The circuit

court, therefore, did not err in rejecting Jefferson

Green’s argument that Proffer No. 3 violates the limitation

contained in Code § 15.2-2297(A)(v).

B. CONSTITUTIONALITY OF PROFFER NO. 3

Article IV, § 14(18) of the Constitution of Virginia

provides that “[t]he General Assembly shall not enact any

local, special, or private law . . . [g]ranting to any

private corporation, association, or individual any special

or exclusive right, privilege, or immunity.” 5 In

determining whether a particular statute violates this

constitutional prohibition, the Zoning Administrator argues

5
Although this constitutional provision is an express
limitation upon the power of the General Assembly, we have
adjudicated the validity of a county ordinance in W.S.
Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 383-84,
478 S.E.2d 295, 300 (1996), and a county contract in
Concerned Residents of Gloucester County v. Board of
Supervisors, 248 Va. 488, 496-99, 449 S.E.2d 787, 792-93
(1994), in light of the prohibition against special
legislation without addressing the fact that the terms of
Article IV, § 14(18) speak to the General Assembly.
Obviously, “[a] municipality cannot be vested with powers
which the General Assembly itself does not possess.”
McClintock v. Richlands Brick Corp., 152 Va. 1, 23, 145
S.E. 425, 431 (1928).

10
that the critical inquiry is whether the statute contains

an arbitrary classification. She asserts that a

classification is not arbitrary if it bears a reasonable

and substantial relationship to a legitimate legislative

objective. Proffer No. 3, according to the Zoning

Administrator, is related to and furthers the necessary and

reasonable public purpose of providing recreational

facilities for the residents of Jefferson Green. Thus, the

Zoning Administrator contends that Proffer No. 3 does not

violate Article IV, § 14(18) of the Constitution of

Virginia.

Jefferson Green takes a contrary position. Relying on

this Court’s decision in McClintock v. Richlands Brick

Corp., 152 Va. 1, 145 S.E. 425 (1928), Jefferson Green

asserts that Proffer No. 3 is special legislation because

it benefits a private organization, Bren Mar. Given what

Jefferson Green terms as “the clear constitutional bar” of

Article IV, § 14(18), it asserts that the Board did not

have the authority to accept Proffer No. 3 even with the

consent of the developer who made the proffer. We do not

agree with Jefferson Green’s position because it fails to

take into account the reasonable and substantial

relationship between Proffer No. 3 and the object it sought

to accomplish.

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 We begin our analysis of this issue by noting that,

pursuant to Code § 15.2-2303(A) (which, as we have already

stated, is the statute under which Fairfax County accepts

proffers), a zoning ordinance may include written proffers.

Thus, the proffers become part of the zoning ordinance. As

such, they are legislative enactments entitled to the

presumption of constitutional validity. See Wayside Rest.,

Inc. v. City of Virginia Beach, 215 Va. 231, 236, 208

S.E.2d 51, 55 (1974) (“ordinance comes to us with the

presumption of constitutionality which attaches to all

legislative enactments”). In accordance with that

presumption, we resolve any doubt in favor of an

enactment’s constitutionality. Id. (citing Town of Ashland

v. Supervisors, 202 Va. 409, 416, 117 S.E.2d 679, 684

(1961)); see also Ex Parte Settle, 114 Va. 715, 719, 77

S.E. 496, 497 (1913).

The constitutional provisions prohibiting special

legislation do not proscribe classifications. King v.

Virginia Birth-Related Neurological Injury Compensation

Program, 242 Va. 404, 409, 410 S.E.2d 656, 659 (1991);

Mandell v. Haddon, 202 Va. 979, 989, 121 S.E.2d 516, 524

(1961); Martin’s Ex’rs v. Commonwealth, 126 Va. 603, 612,

102 S.E. 77, 80 (1920). However, to pass constitutional

scrutiny, a classification “must be natural and reasonable,

12
and appropriate to the occasion.” Id.; accord King, 242

Va. at 409, 410 S.E.2d at 659; Holly Hill Farm Corp. v.

Rowe, 241 Va. 425, 430, 404 S.E.2d 48, 50 (1991); Mandell,

202 Va. at 989, 121 S.E.2d at 524. “[T]he test for

statutes challenged under the special-laws prohibitions in

the Virginia Constitution is that they must bear ‘a

reasonable and substantial relation to the object sought to

be accomplished by the legislation.’ ” Benderson Dev. Co.,

v. Sciortino, 236 Va. 136, 147, 372 S.E.2d 751, 757

(1988) (quoting Mandell, 202 Va. at 991, 121 S.E.2d at

525); accord Pulliam v. Coastal Emergency Servs. of

Richmond, Inc., 257 Va. 1, 18, 509 S.E.2d 307, 317 (1999).

“But the necessity for and the reasonableness of

classification are primarily questions for the legislature.

If any state of facts can be reasonably conceived, that

would sustain it, that state of facts at the time the law

was enacted must be assumed.” Martin’s Ex’rs, 126 Va. at

612-13, 102 S.E. at 80; accord Pulliam, 257 Va. at 18-19,

509 S.E.2d at 317; Holly Hill Farm, 241 Va. at 431, 404

S.E.2d at 50; Mandell, 202 Va. at 989, 121 S.E.2d at 524;

Joyner v. Centre Motor Co., 192 Va. 627, 635, 66 S.E.2d

469, 474 (1951). The party assailing the enactment carries

the burden of establishing “that it does not rest upon a

reasonable basis, and is essentially arbitrary.” Holly

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Hill Farm, 241 Va. at 431, 404 S.E.2d at 50 (citing

Martin’s Ex’rs, 126 Va. at 614, 102 S.E. at 81).

Judged against this analytical framework, we cannot

say that Proffer No. 3 violates the constitutional

proscription against special legislation. When the Board

accepted Proffer No. 3 in 1981, its objective was to

provide recreational facilities to the residents of

Jefferson Green. In fact, the rezoning in 1976 required

on-site recreational facilities. That objective was a

legitimate and reasonable legislative purpose. See Code

§ 15.2-2200 (formerly Code § 15.1-427) (recognizing need

for recreational facilities). The Board accomplished its

objective by allowing the recreational facilities to be

provided at Bren Mar, a recreational complex located across

the street from Jefferson Green, rather than requiring on-

site facilities. The record before us does not demonstrate

the existence of any other recreational facility in the

same proximity to Jefferson Green as Bren Mar was at that

time. Given the “state of facts at the time the law was

enacted,” Martin’s Ex’rs, 126 Va. at 612-13, 102 S.E. at

80, we believe that Proffer No. 3 was not arbitrary and

that it bore “a reasonable and substantial relation to the

object sought to be accomplished.” Mandell, 202 Va. at

991, 121 S.E.2d at 525.

14
 Jefferson Green, nevertheless, contends that this

Court’s decision in McClintock controls the disposition of

the present case. There, the General Assembly, in a

special act, authorized “the town council of the town of

Richlands . . . to grant to any person, firm or chartered

company engaged in mining, manufacturing or merchandising,

a right of way for the construction, operation and

maintenance of a tramway or railway across, upon or along

any of the avenues or streets of said town, for a period

not to exceed thirty years . . . .” 152 Va. at 5, 145 S.E.

at 426. Pursuant to that act, the town council adopted an

ordinance granting a brick company the right to construct a

tramway upon a certain street in Richlands for the purpose

of hauling clay and shale in tram cars to its kilns for the

manufacture of brick. Id. The owner of a lot abutting

that street challenged the ordinance, in part, on the basis

that it violated the constitutional prohibition against

special legislation. Id. at 10, 145 S.E. at 427. This

Court agreed with the challenge.

The understood objective of the ordinance was economic

development of the town. As we noted in our opinion, the

brick company was “the only local enterprise of

consequence” and had been contemplating the need to move

from the town before it received the franchise to construct

15
a tramway. Id. at 8-9, 145 S.E. at 427. However, there

was no reasonable and substantial relationship between the

legitimate legislative objective of economic development

and limiting the right to construct a tramway or railway

upon a town street to persons or companies “engaged in

mining, manufacturing or merchandising.” Id. at 5, 145

S.E. at 426. Thus, the ordinance failed constitutional

scrutiny because it was not “natural and reasonable, and

appropriate to the occasion.” Martin’s Ex’rs, 126 Va. at

612, 102 S.E. at 80.

We believe that our decision in King is more directly

on point. In that case, we upheld the constitutionality of

the Virginia Birth-Related Neurological Injury Compensation

Act, Code §§ 38.2-5000 through –5021, against an attack

asserting that it violated the constitutional prohibition

against special legislation. 242 Va. at 410, 410 S.E.2d at

660. The Act required a “participating physician,” defined

as a physician practicing obstetrics or performing

obstetrical services, Code § 38.2-5001, to pay an annual

assessment in an amount significantly larger than the

annual assessment required from “non-participating

physicians.” Id. at 408, 410 S.E.2d at 659. Those “non-

participating physicians” argued that the Act

“constitute[d] a special or private law because it

16
remove[d] certain claims against physicians who practice

obstetrical medicine from the traditional tort system and

require[d] that physicians who cannot participate in the

Program pay an annual assessment which is used to fund the

Program.” Id.

Rejecting that argument, we stated that the General

Assembly conceivably concluded that, by removing the claims

of certain neurologically injured infants from the tort

system, the cost of medical malpractice insurance premiums

in the Commonwealth would decline, thereby making medical

malpractice insurance available to all physicians

practicing in Virginia. Id. at 410, 410 S.E.2d at 660.

Based on that state of facts, we held that the

classification created by the Act was “not arbitrary and

[bore] a reasonable and substantial relation to a

legitimate object sought to be accomplished by the

legislation.” Id.

Thus, we conclude that the circuit court erred in its

finding that Proffer No. 3 violates Article IV, § 14(18) of

the Constitution of Virginia. It focused only on the fact

that Bren Mar is a private organization receiving an

economic benefit as a result of Proffer No. 3. The court

did not squarely address the reasonable and substantial

relationship between the Board’s objective and Proffer No.

17
3. Nor did the court consider the state of facts in

existence when the Board accepted Proffer No. 3.

Citing Abood v. Detroit Bd. of Educ., 431 U.S. 209

(1977); Shelton v. Tucker, 364 U.S. 479 (1960); and NAACP

v. Committee, 204 Va. 693 (1963), the circuit court also

concluded that Proffer No. 3 infringes upon “freedom of

association” and that there was no compelling governmental

interest to justify Jefferson Green’s “forced” membership

in Bren Mar. In its letter opinion, the court did not

indicate, however, whether it believed that Proffer No. 3

violates the First Amendment of the Constitution of the

United States and/or Article I, § 12 of the Constitution of

Virginia. Regardless of the basis of the court’s decision,

we conclude that it erred.

In City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989),

the Supreme Court of the United States once again stated

that the First Amendment protects two different kinds of

“freedom of association.” See also Roberts v. United

States Jaycees, 468 U.S. 609, 617-18 (1984). The first

type involves “ ‘choices to enter into and maintain certain

intimate human relationships [that] must be secured against

undue intrusion by the State because of the role of such

relationships in safeguarding the individual freedom that

is central to our constitutional scheme.’ ” Stanglin, 490

18
U.S. at 24 (quoting Roberts, 468 U.S. at 617-18). The

second type of “freedom of association” involves the

“ ‘right to associate for the purpose of engaging in those

activities protected by the First Amendment–speech,

assembly, petition for the redress of grievances, and the

exercise of religion.’ ” Id. (quoting Roberts, 468 U.S. at

618). The Court further stated, “[W]e do not think the

Constitution recognizes a generalized right of ‘social

association . . . .’ ” 490 U.S. at 25.

To the extent, if any, that Proffer No. 3 infringes

upon “freedom of association,” the affected association is

not one involving intimate human relationships or

activities specifically protected by the First Amendment.

Instead, it is only a generalized “social association,”

which is not a right recognized by the Constitution. Id.

The cases relied upon by the circuit court in support of

its decision on this issue are inapposite because they

involved the second type of “freedom of association”

discussed in Stanglin. 490 U.S. at 24.

III. CONCLUSION

In summary, we will affirm the part of the circuit

court’s judgment in which it concluded that Proffer No. 3

does not violate Code § 15.2-2297(A)(v). We will reverse

the portion of the court’s judgment finding Proffer No. 3

19
to be unconstitutional. Accordingly, since Proffer No. 3

is valid and enforceable, we will also affirm the circuit

court’s judgment finding Jefferson Green in violation of

Proffer No. 3, directing Jefferson Green to re-establish

membership in Bren Mar and to pay all monies owed to Bren

Mar, and enjoining Jefferson Green from any future

violation of Proffer No. 3.

Affirmed in part,
reversed in part,
and final judgment.

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