Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.
RIVERVIEW FARM ASSOCIATES
VIRGINIA GENERAL PARTNERSHIP, ET AL.
v. Record No. 990853 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 3, 2000
BOARD OF SUPERVISORS OF CHARLES
CITY COUNTY, ET AL.
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Thomas B. Hoover, Judge
In this appeal, we consider whether the trial court erred
in sustaining a demurrer to a bill of complaint for declaratory
judgment challenging a local governing body's decision approving
a conditional rezoning application.
Riverview Farm Associates Virginia General Partnership,
Jearald D. Cable, Robert L. Waldrop, and Cardwell Ferguson
Hannabass (collectively, the plaintiffs) filed a bill of
complaint for declaratory judgment against the Charles City
County Board of Supervisors (the Board) and Weanack Land,
Limited Partnership (Weanack). The plaintiffs sought a
declaration that the Board's decision rezoning 41.27 riverfront
acres owned by Weanack (the Weanack property) to an "Industrial
M-2-C" classification was unreasonable, arbitrary, and void.
All the plaintiffs owned property located within about 2,000
1
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
feet of either the Weanack property or the access road serving
the Weanack property.
The Weanack property is located next to the Shirley
Plantation, an historical landmark, and includes a port on the
James River used for the docking, loading, and unloading of
barges. In 1995, the Board changed the Weanack property's
zoning classification from "A-1 Agricultural" to "Business
Conditional B-1-C." The purpose of the 1995 rezoning was to
permit use of the Weanack property as a port to receive barges
delivering containerized municipal waste destined for the
Charles City County landfill, which is operated jointly by
Charles City County (the County) and a private company. These
waste transportation operations on the Weanack property began in
1996.
A condition of the "B-1-C" rezoning prohibited truck
traffic entering or leaving the Weanack property from using
Route 5 or Route 608. A second condition limited truck traffic
from the dock facility to Route 106/156 to "[n]o more than 125
truck loads per day." This truck traffic reached Route 106/156
by using an access road on an easement over property owned by T.
Davis Copeland and Pamela P. Copeland (the Copelands). At the
time of the proceedings at issue, a lawsuit was pending between
the Copelands and Weanack concerning Weanack's use of the
easement.
2
In October 1997, Weanack filed an application to rezone the
Weanack property from the "Business B-1-C" classification to
"Industrial M-2-C." Weanack also requested that the Board amend
the Charles City County zoning ordinance (zoning ordinance) to
include in its "Industrial M-2" classification specified
waterfront industrial uses, including "docks and areas for the
receipt, storage and transhipment of waterborne commerce." In
December 1997, the Board voted to amend the zoning ordinance's
"Industrial M-2" classification as requested, but deferred
consideration of the application to rezone Weanack's property.
Weanack's rezoning application included 11 detailed
proffers. Among these proffers, Weanack stated the hours during
which its facility would be operated, and established different
time restrictions for trucking, "land-based operations" such as
loading and unloading barges, and "marine-based operations" such
as docking barges. Weanack further agreed in the proffers that
its trucks would not travel on Routes 5 and 608.
Weanack's proffers also addressed the volume of truck
traffic that would be permitted for the transportation of waste
to the County's landfill. Weanack agreed to limit the number of
truck trips per day entering or exiting Route 106/156 to 150,
250, or 300 truckloads, depending on the improvements made to
the access road that Weanack used to reach Route 106/156. In
3
February 1998, the Board granted Weanack's rezoning application
and accepted the above proffers as part of the rezoning.
After the Board filed a demurrer to the plaintiffs'
original bill of complaint, the plaintiffs sought to add the
Copelands as plaintiffs in the case. The Board and Weanack
objected to the plaintiffs' request. The trial court denied the
request on the grounds that "the Copelands do not qualify as
necessary parties to this case, and further that the Copelands
should have filed their own case, or filed their requested
amendment, within 30 days [of the Board's decision]." The trial
court also sustained the Board's demurrer to the bill of
complaint, but granted the plaintiffs leave to file an amended
bill of complaint.
In Count I of their second amended bill of complaint, the
plaintiffs alleged that the Board's decision rezoning the
Weanack property violated Code § 15.2-2297(A)(vii), which
requires that proffers made as part of a rezoning application be
in conformity with the local governing body's comprehensive
plan. They alleged that two of Weanack's proffers were not in
conformity with the County's 1991 Comprehensive Plan. First,
the plaintiffs alleged that the use of an access road over the
Copeland property for truck traffic leaving the Weanack facility
created "an intensive industrial use area" on the Copelands'
property, contrary to its agricultural designation in the
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County's 1991 Comprehensive Plan. Second, they alleged that
Weanack's proffer concerning the facility's hours of operation
also was not in conformity with the 1991 Plan.
In addition, the plaintiffs alleged that their use of their
own properties would be adversely impacted by the trucking
noise, litter, dust, odors, and exposure to disease from the
garbage unloaded on the Weanack property and transported over
the access road on the Copeland property. They also alleged
that the Board's acceptance of Weanack's proffers as part of the
rezoning was "unreasonable and illegal."
In Count II, the plaintiffs alleged that the rezoning
violated the County's zoning ordinance because the rezoning
permitted a private road in an area zoned for agricultural use
to be part of an industrial use, when "there is no language
authorizing the use of access roads in other zoned areas." The
plaintiffs also alleged that the rezoning imposed "intensive"
industrial uses on the Copeland property and converted that
property to an industrial use contrary to its agricultural use
classification. In Count V, the plaintiff alleged that the
Board's decision granting the rezoning application constituted
illegal "spot zoning." 2
2
Counts III, IV, and VI of the second amended bill of
complaint are not at issue in this appeal.
5
The Board and Weanack filed demurrers to the second amended
bill of complaint. They also asked the trial court to strike
the plaintiffs' pleading, arguing that the plaintiffs improperly
attempted to assert claims that could only be brought by the
Copelands, contrary to the trial court's earlier ruling
precluding such claims.
The trial court struck Count II and those parts of Counts I
and V "setting forth . . . allegations concerning the Copeland
property." The court also ruled that Count II failed to state a
valid claim, and alternatively held that it constituted an
"impermissible new claim." The trial court sustained the
demurrer to the balance of Counts I and V and dismissed the case
with prejudice.
On appeal, the plaintiffs argue that the trial court erred
in denying their request to add the Copelands as plaintiffs.
They assert that if an action challenging a local governing
body's zoning decision has been brought within the 30-day time
period following the decision, as required by Code § 15.2-
2285(F), additional plaintiffs may be added after the 30-day
period has expired. The plaintiffs contend that their second
amended bill of complaint does not allege "impermissible new
claims" concerning the Copelands' property because these claims
were based on the same facts alleged in the original bill of
complaint and sought the same relief.
6
The plaintiffs also argue that Count I stated a valid cause
of action in alleging that the Board improperly accepted certain
proffers from Weanack that were contrary to the County's 1991
Comprehensive Plan. They contend that Count II stated a cause
of action, irrespective whether the Copelands were added as
parties, because the plaintiffs alleged that the Board violated
the County's zoning ordinance by accepting proffers that "impose
industrial uses" on property zoned for agricultural use. The
plaintiffs also assert that they properly alleged a claim of
illegal spot zoning in Count V.
In response, the Board and Weanack (collectively, Weanack)
argue that the trial court properly denied the request to add
the Copelands as plaintiffs, since the Copelands failed to file
suit contesting the Board's decision within the 30-day period
required by Code § 15.2-2285(F). Weanack asserts that after
denying this request, the trial court correctly sustained the
demurrer to claims relating to the proffers addressing truck
traffic on the access road, since these claims could only be
brought by the Copelands. Weanack further contends that the
plaintiffs failed to allege any facts to support their
allegation in Count I that the proffered conditions were
inconsistent with the County's comprehensive plan.
Weanack also contends that the plaintiffs failed to state a
cause of action in Count II because they alleged no facts from
7
which the court could conclude that the conditional rezoning of
the Weanack property "imposed" an industrial use on the Copeland
property. Weanack argues that property zoned for agricultural
use, which is adjacent to property zoned for industrial use,
does not have to be rezoned to an industrial classification
before being used to provide access for traffic travelling to
and from the industrial site. Finally, Weanack asserts that
Count V is legally insufficient because it does not allege that
the rezoning was intended solely to serve the interests of a
private party.
Initially, we consider the plaintiffs' claim that the trial
court erred in denying their request to add the Copelands as
plaintiffs in the case. Code § 15.2-2285(F) requires that an
action contesting a rezoning decision of a local governing body
be filed in the circuit court within 30 days of the decision.
The rezoning of the Weanack property occurred on February 10,
1998, and the plaintiffs requested that the Copelands be added
as parties to the appeal on May 29, 1998. Thus, the plaintiffs'
request to add the Copelands was made after the statutory period
had expired for the Copelands to bring an action alleging the
claims asserted in the original bill of complaint.
We disagree with the plaintiffs' argument that the trial
court's ruling was contrary to our decision in Friends of Clark
Mountain Found., Inc. v. Board of Supervisors, 242 Va. 16, 406
8
S.E.2d 19 (1991). There, the plaintiffs, who were owners of
land in the vicinity of a rezoned tract, filed suit against the
local governing body seeking a declaratory judgment that the
decision rezoning the tract and granting a special use permit
was unreasonable, arbitrary, and capricious. The plaintiffs
failed to join as defendants in the suit the owner of the
rezoned tract and a person holding an option to purchase the
tract. 242 Va. at 18-19, 406 S.E.2d at 20.
The trial court dismissed the suit on the grounds that the
owner of the tract and the option holder were necessary parties
and had not been joined as defendants in the suit prior to the
expiration of the 30-day appeal period. We reversed the
judgment, holding that under former Code § 15.1-493(G), the only
required parties at the time of filing the appeal are the
contestant and the local governing body. Therefore, we
concluded that the expiration of the 30-day appeal period did
not preclude the contestant from seeking the joinder of other
necessary parties to the suit. 242 Va. at 21-22, 406 S.E.2d at
22.
Our holding in Clark Mountain was based on the principle
that when a contesting action has been initiated in conformance
with statutory requirements, the action should not be
adjudicated until any remaining necessary parties have
intervened or been brought into the proceeding. This approach
9
assures that the legislative body's decision will be reviewed in
a fair, orderly, and prompt manner. Id. Here, however, these
concerns were not present because the Copelands were not
necessary parties to an adjudication of the counts contained in
the original bill of complaint. Thus, we conclude that the
trial court did not err in denying the plaintiffs' request to
add the Copelands as plaintiffs in the action.
We next consider the trial court's decision sustaining the
plaintiffs' demurrer to the second amended bill of complaint.
The standard of review that we apply is well established. We
consider as true all material facts alleged in a bill of
complaint, all facts impliedly alleged, and all reasonable
inferences that can be drawn from such facts. Moore v. Maroney,
258 Va. 21, 23, 516 S.E.2d 9, 10 (1999); Concerned Taxpayers of
Brunswick County v. County of Brunswick, 249 Va. 320, 323, 455
S.E.2d 712, 713 (1995); Krantz v. Air Line Pilots Ass'n, Int'l,
245 Va. 202, 204, 427 S.E.2d 326, 327 (1993). However, a
demurrer does not admit the correctness of the conclusions of
law asserted in a bill of complaint. Moore, 258 Va. at 23, 516
S.E.2d at 10; Ward's Equip., Inc. v. New Holland N. America, 254
Va. 379, 382, 493 S.E.2d 516, 518 (1997).
The trial court is not permitted on demurrer to evaluate
and decide the merits of the allegations set forth in a bill of
complaint, but only may determine whether the factual
10
allegations of the bill of complaint are sufficient to state a
cause of action. Concerned Taxpayers of Brunswick County, 249
Va. at 327-28, 455 S.E.2d at 716; Fun v. Virginia Military
Inst., 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). Thus, the
trial court errs in sustaining a demurrer if a bill of
complaint, considered in the light most favorable to the
plaintiff, states a cause of action. W.S. Carnes, Inc. v. Board
of Supervisors, 252 Va. 377, 384, 478 S.E.2d 295, 300 (1996);
see Luckett v. Jennings, 246 Va. 303, 307, 435 S.E.2d 400, 402
(1993).
We conclude that the trial court erred in sustaining the
demurrer to Count I because it stated a cause of action that
could be asserted by the plaintiffs independent of the
Copelands. Count I challenged the "off-site" proffers regarding
truck traffic on the basis of the alleged impact of the
proffered conditions on the plaintiffs' use of their own
properties, not on the basis of any property right held by the
Copelands. The plaintiffs live within sufficiently close
proximity to the property that is the subject of the rezoning to
possess a "justiciable interest" in the litigation of Count I.
See Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d
407, 411 (1984); Board of Supervisors v. Fralin & Waldron, Inc.,
222 Va. 218, 224, 278 S.E.2d 859, 862 (1981). Thus, the absence
of the Copelands as parties did not bar consideration of the
11
issue whether the "off-site" proffers failed to conform to the
County's comprehensive plan and rendered the zoning
unreasonable.
The plaintiffs also alleged that the proffer permitting
marine-based operations "24 Hours [per day], 7 days a week" was
inconsistent with the County's comprehensive plan. Weanack
argued on demurrer that the County's 1998 Comprehensive Plan,
adopted three months after the Board's approval of the Weanack
rezoning application, designates the Weanack property for
industrial use. Weanack's argument, however, does not resolve
the plaintiffs' claim concerning the hours and days of
operation, or their claim regarding the "off-site" proffers, as
a matter of law. 3
Proffered conditions are permitted as part of a rezoning
"for the protection of the community" in which the property that
is the subject of the proposed rezoning is located. Code
§ 15.2-2296; Gregory v. Board of Supervisors, 257 Va. 530, 536,
514 S.E.2d 350, 353 (1999). Code § 15.2-2297(A) imposes several
requirements that must be met before proffered conditions may be
incorporated as part of a rezoning amendment. Included among
3
Since the parties agree that the Board adopted the proposed
1998 Comprehensive Plan, we do not consider the differences in
the provisions of the 1991 and 1998 Plans because, at a trial on
remand, the court may consider the 1998 Comprehensive Plan. See
Barrick v. Board of Supervisors, 239 Va. 628, 635, 391 S.E.2d
318, 322 (1990).
12
these requirements are provisions that "the conditions shall
have a reasonable relation to the rezoning," and that "all such
conditions shall be in conformity with the [local governing
body's] comprehensive plan." Id. The plaintiffs were entitled
to present evidence supporting their allegations that the
proffered conditions concerning truck traffic were not in
conformity with the County's comprehensive plan and rendered the
zoning unreasonable because they permitted heavy truck traffic
to proceed near the plaintiff's property over property
designated for agricultural use. The plaintiffs also were
entitled to present evidence to support their allegation that
the proffered condition concerning the hours of operation of the
port facility rendered the zoning unreasonable and was not in
conformity with the County's comprehensive plan that designated
the neighboring properties for agricultural use.
We also conclude that the plaintiffs stated a cause of
action in Count I, based on the facts set forth in their
pleading, by alleging that the rezoning was "not consistent with
the . . . [c]omprehensive [p]lan, and was arbitrary and
capricious, unreasonable, and incompatible with surrounding land
uses." Although the 1998 Comprehensive Plan designated the
Weanack property for industrial use, an issue remained whether
this particular rezoning action, because of its proffered
conditions, was a reasonable exercise of the Board's authority.
13
This portion of the claim could not be resolved as a matter of
law, but could only be determined after consideration of
evidence presented by the parties.
We next conclude that the trial court did not err in
dismissing Count II of the second amended bill of complaint,
which contained two basic allegations. The first was that the
proffered conditions regarding truck traffic constitute "a
conversion of the privately owned access road to industrial use
without proper rezoning." The trial court did not err in
dismissing this portion of Count II because it involves the
property rights of the Copelands, who were not parties to this
suit.
The second allegation of Count II centered on the
plaintiffs' assertion that the County's zoning ordinance does
not allow "zoning proffers which impose an industrial use on a
private access road which is not located within the industrial
zone or district." The trial court did not err in dismissing
this portion of Count II because it fails to state a cause of
action. First, the proffered conditions do not impose any "use"
on the access road over the easement on the Copeland property,
but place restrictions on the number of truckloads entering or
exiting Route 106/156, depending on the condition of the access
road.
14
Second, the relevant conditional zoning statutes and
ordinance provisions do not require that "off-site" proffers be
confined to properties having the same zoning classification as
the property that is the subject of the rezoning. Code § 15.2-
2297 and Charles City County Ordinance § 13.1-2, which contain
the same substantive provisions, permit proffered conditions as
part of a rezoning subject to the specific requirements stated
in those provisions.
We next conclude that the trial court did not err in
dismissing Count V of the second amended bill of complaint,
which alleged that the rezoning action constituted illegal spot
zoning. Count V also alleged that as part of the rezoning,
Weanack agreed through proffers to send all the waste
transported into its facility to the County's landfill "for the
exclusive revenues of the County." Finally, Count V alleged
that the purpose of the rezoning was "to serve the special
financial interests of Weanack and the County."
Illegal spot zoning occurs when the purpose of a zoning
ordinance or rezoning amendment is solely to serve the private
interests of one or more landowners, rather than to further a
locality's welfare as part of an overall zoning plan that may
include a concurrent benefit to private interests. Barrick v.
Board of Supervisors, 239 Va. at 632-33, 391 S.E.2d at 320;
Board of Supervisors v. Fralin & Waldron, Inc., 222 Va. at 226,
15
278 S.E.2d at 863-64; Wilhelm v. Morgan, 208 Va. 398, 403-04,
157 S.E.2d 920, 924 (1967). The trial court properly dismissed
the plaintiffs' claim in Count V because it alleged that the
purpose of the rezoning was to benefit the interests of the
County, as well as the interests of a private landowner.
For these reasons, we will affirm the portion of the trial
court's judgment dismissing Counts II and V of the second
amended bill of complaint. We will reverse the portion of the
trial court's judgment dismissing Count I and remand Count I to
the trial court for a trial on the merits consistent with the
principles expressed in this opinion.
Affirmed in part,
reversed in part,
and remanded.
16