Present: All the Justices
JAMES E. GREGORY, SR., ET AL.
v. Record No. 981184 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 16, 1999
THE BOARD OF SUPERVISORS
OF CHESTERFIELD COUNTY
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
In this appeal, we consider whether the trial court erred
in upholding a decision by the Board of Supervisors of
Chesterfield County (the Board) denying an application for
rezoning that included proffers of monetary conditions
substantially lower in amount than those recommended by the
County.
James E. Gregory, Sr., and Mary C. Gregory own a 30-acre
parcel of land with frontage on Newbys Bridge Road in
Chesterfield County (the property). The Gregorys have lived on
the property since purchasing it in 1955. In March 1994, the
Gregorys entered into a contract to sell the property to Oscar
H. Harriss.
Harriss filed an application with Chesterfield County (the
County) in March 1994, requesting that the zoning classification
of the property be changed from "Agricultural A" to "Single-
Family Residential R-9." Harriss later amended the application
to request that the property be rezoned to "Single-Family
Residential R-12" (the final application). In the final
application, Harriss proposed a residential subdivision of 81
lots, with a density of about 2.7 dwelling units per acre.
In his original application to rezone the property to an R-
9 designation, which would have permitted a maximum of 95 lots,
Harriss proffered cash payments to the County in the amount of
$5,043 per lot for "infrastructure improvements." In the final
application, Harriss proffered cash payments of $1,500 per lot.
In both applications, Harriss made additional proffers, which
included the dedication of an easement to permit the widening of
Newbys Bridge Road and the construction of off-site improvements
designed to minimize the development’s impact on the surrounding
area.
While Harriss' applications were pending, the County had in
effect a written policy concerning cash proffers. The policy set
out a methodology for calculating the cost to the County of
providing public facilities for each new residence in a proposed
subdivision, including schools, roads, parks, libraries, and fire
stations. In 1995, based on calculations made using this
methodology, the policy provided that "residential rezoning
applicants are being asked to proffer $5,083 per lot."
After reviewing Harriss’ final application, the County's
planning staff (the staff) recommended approval of the
application "subject to the applicant addressing the impact on
2
capital facilities and the transportation network, consistent
with the Board's policy." The staff noted that the proposed
rezoning and land use conformed to the County's comprehensive
plan, which designated the property for residential use with a
density of 1.51 to 4.0 units per acre. However, the staff
concluded that the proposal "fail[ed] to adequately address
concerns relative to impacts on the transportation network and
capital facilities."
In its report, the staff estimated that the proposed 81-lot
development would result in the addition of about 227 new
residents, including an estimated 47 school-age children. The
staff also estimated that the new residences would generate
about 850 additional daily vehicle trips, primarily along Newbys
Bridge Road. The staff concluded that traffic generated from
the proposed development, along with other traffic using the new
subdivision roads as "cut through" routes, would "increase
traffic volumes on the adjacent subdivision streets beyond the
acceptable level." The staff estimated that the "fiscal impact"
on the County's capital facilities resulting from Harriss'
proposed subdivision of 81 dwelling units would be $5,156 per
unit.
The Chesterfield County Planning Commission (the
Commission) considered Harriss' applications to rezone the
property at meetings held in June and November 1994. The
3
Commission recommended denial of the final application, citing
concerns regarding the impact that the rezoning would have on
traffic, drainage, schools, and fire and rescue service.
The Board considered Harriss' final application at a public
hearing in January 1995. During the hearing, 16 citizens spoke
in opposition to the application, while one citizen spoke in
favor of it. Many of these area residents cited the inability
of Newbys Bridge Road to accommodate additional traffic. They
emphasized that the road had dangerous curves, flooding
problems, narrow sections preventing school buses from passing
each other in opposite directions, a lack of shoulders, drainage
ditches located close to the edge of the pavement, and a very
high volume of traffic using the road. Several of these
citizens also expressed concern regarding the impact that the
proposed development would have on area schools, particularly on
the elementary school that would serve children in the proposed
subdivision. The principal of that elementary school stated
that the school's enrollment already exceeded planned capacity
by 121 students.
William Poole, Assistant Director of Planning for the
County, stated at the hearing that the proposed rezoning of the
property to R-12 was "consistent with the County's adopted Land
Use Plan." Poole noted that the predominant zoning
classification in the general area of the property was single-
4
family residential, but that most of the land immediately
adjacent to the subject property was zoned for agricultural use.
Poole recommended that the application be approved only if the
Board was satisfied that the application adequately addressed
the fiscal impact of the proposed development on transportation,
schools, drainage, and other residential development in the
area. The Board voted to deny the application.
The Gregorys and Harriss (collectively, Harriss) filed a
motion for declaratory judgment in the Circuit Court of
Chesterfield County, seeking a declaration that the Board's
denial of the rezoning application was, among other things,
unlawful, arbitrary, and unreasonable. At a bench trial, Thomas
E. Jacobson, the County's Director of Planning, testified that
the County's planning staff had reviewed the initial versions of
Harriss' application and had recommended approval of them.
However, after reviewing the final application, the staff
recommended approval only if the Board determined that the
County's "capital needs" would be met. Jacobson acknowledged
that the only significant difference between the final
application and the previous versions, other than reducing the
maximum number of lots from the original proposal of 95 to 81,
was the decrease in the amount of the cash proffers.
Jacobson explained that under the County's policy, a
rezoning applicant can proffer, in lieu of cash, the
5
construction of road or sidewalk improvements, or "a myriad of
[other] ways" of addressing the impact of the proposed
development on public facilities and infrastructure. He
testified that since the County adopted its voluntary proffer
policy, about 5,500 new lots have been created through rezoning
approvals, and that about 51% of those lots were either approved
with no cash proffer or cash proffers of less than the
recommended amount.
Donald J. Balzer, who qualified as an expert in land use
issues, testified that "the most appropriate and reasonable use"
of the property was an R-9 classification, which allowed an even
greater density than the R-12 classification Harriss sought.
However, he also acknowledged that a reasonable use of the
property under its present agricultural classification would be
to "leave it as it is" or to subdivide it into two or three lots
for single family residences.
The trial court noted that "[p]ersuasive evidence exists
that full cash proffers or lack thereof played a key factor in
the Board['s] determination." The court found that there was
evidence from which to conclude that the County "expected" cash
proffers, but that "the evidence is not as definitive" as the
evidence presented in Board of Supervisors v. Reed's Landing
Corp., 250 Va. 397, 463 S.E.2d 668 (1995). The court then
concluded that the evidence of the proposed development's impact
6
on health, safety, and welfare made the reasonableness of the
Board's decision "fairly debatable."
The trial court further ruled that the Board's decision was
not arbitrary or capricious because there was evidence that two
zoning classifications were reasonable for the property, the
existing "Agricultural A" classification and the proposed R-12
classification. The court entered judgment affirming the
Board's decision and dismissing the motion for declaratory
judgment.
On appeal, Harriss first argues that the evidence showed
that the Board effectively imposed a proffer requirement,
contrary to Code § 15.2-2298 * and this Court's decision in Reed's
Landing. In response, the Board argues that the trial court did
not err in concluding that the Board based its decision on
legitimate and mandatory considerations of public health,
safety, and welfare. The Board contends that, based on the
record in this case, its denial of the final application did not
violate Code § 15.2-2298 or this Court's holding in Reed's
Landing. We agree with the Board.
Initially, we note that, at all times relevant to this
appeal, Chesterfield County had in effect a conditional zoning
*
Effective December 1, 1997, Title 15.1 was re-codified as
Title 15.2 and Code § 15.1-491.2:1 became Code § 15.2-2298.
1997 Va. Acts of Assembly, ch. 587. Since there were no
7
ordinance authorized by Code § 15.2-2298. This statute permits
localities that have experienced specified population growth to
implement conditional zoning in which a landowner is permitted,
prior to a hearing before a governing body, to submit voluntary
written proffers of “reasonable conditions” as part of the
landowner’s proposed amendment to the zoning ordinance. Code
§ 15.1-2298(A). Those conditions may be made part of a rezoning
if the rezoning itself gives rise to the need for the
conditions, and if the conditions have a reasonable relation to
the rezoning and are in conformity with the comprehensive plan.
Id.
The declared purpose of the statutes permitting conditional
zoning is to "provide for the orderly development of land" when
"competing and incompatible uses conflict." Proffers submitted
by a zoning applicant are permitted “for the protection of the
community” in which the property subject to the proposed
rezoning is located. Code § 15.2-2296.
These statutory provisions allow a local governing body to
consider voluntarily proffered conditions as one factor in
deciding whether to grant a proposed rezoning. Although a
governing body may exercise its discretion to grant or deny a
rezoning request that contains such proffered conditions, the
substantive changes in the sections at issue, we will refer to
the current code sections in this decision.
8
governing body must make its decision based on the merits of the
entire application and may not require that any proffered
conditions be included in the rezoning application.
In Reed's Landing, we held that under former Code § 15.1-
491.2:1, the predecessor statute to Code § 15.2-2298, a local
governing body is "not empowered to require a specific proffer
as a condition precedent to a rezoning." 250 Va. at 400, 463
S.E.2d at 670. The evidence in that case showed that there was
no public opposition to the proposed rezoning, that the Powhatan
County Planning Commission unanimously recommended that the
rezoning be approved, and that, since the adoption of "proffer
guidelines," no R-1 rezonings had been approved without the
recommended cash proffer. Id. at 399, 463 S.E.2d at 669. Thus,
the record supported the trial court's conclusion that the sole
reason the Powhatan County Board of Supervisors denied the
developer's rezoning request was the developer's refusal to make
a cash proffer of a fixed amount. Id. at 400, 463 S.E.2d at
670. Under those facts, we held that the trial court correctly
ruled that the proffer was not voluntary within the meaning of
the statute, and that the Board imposed an unlawful condition
precedent on the developer. Id.
In contrast to the record in Reed's Landing, the trial
court in the present case did not find that the rezoning request
was denied solely due to the absence of cash proffers in a
9
particular amount. Although the court found "persuasive
evidence" that the absence of maximum cash proffers "played a
key factor" in the Board's decision, and that cash proffers were
"expected," the court also found ample evidence supporting the
Board’s denial of the application based on health, safety, and
welfare concerns.
The decision of a board of supervisors denying an
application for rezoning is a legislative act that is presumed
to be reasonable. City Council v. Wendy's of Western Va., Inc.,
252 Va. 12, 14, 471 S.E.2d 469, 470 (1996); County Bd. v.
Bratic, 237 Va. 221, 227, 377 S.E.2d 368, 371 (1989); Board of
Supervisors v. Jackson, 221 Va. 328, 333, 269 S.E.2d 381, 384
(1980). This presumption will stand until the applicant
presents probative evidence that the legislative act was
unreasonable. Id. If the applicant's challenge is met by the
board with evidence of reasonableness sufficient to render the
issue fairly debatable, then the legislative action must be
sustained. Wendy's of Western Va., 252 Va. at 15, 471 S.E.2d at
471; Bratic, 237 Va. at 227, 377 S.E.2d at 371; Jackson, 221 Va.
at 333, 269 S.E.2d at 385. A matter is fairly debatable if,
when evaluated by quantitative and qualitative measures, the
evidence in support of the opposing views could lead objective
and reasonable persons to reach different conclusions. Wendy’s
of Western Va., 252 Va. at 15, 471 S.E.2d at 470-71; Board of
10
Supervisors v. Pyles, 224 Va. 629, 638, 300 S.E.2d 79, 84
(1983).
Harriss challenged the presumption of reasonableness in
this case with probative evidence suggesting that the Board
based its decision on an impermissible proffer requirement. The
Board responded to this evidence of unreasonableness with
evidence that cash proffers were not required as a condition
precedent to a rezoning, and that the rezoning requested by
Harriss would adversely impact public health, safety, and
welfare in the area of the proposed development. This evidence
of reasonableness presented by the Board was sufficient to rebut
Harriss' contention that the Board effectively imposed a proffer
requirement on his rezoning application.
Harriss argues, nevertheless, that the Board's decision was
unreasonable because the only practical, beneficial use of the
property was to develop it as a residential subdivision. The
Board contends in response that the evidence supports the trial
court’s conclusion that there were two reasonable zoning
classifications for the property, the existing agricultural
designation and the proposed R-12 designation. The Board
asserts that, therefore, the trial court properly concluded that
the Board was free to choose between these classifications. We
agree with the Board.
11
A property owner seeking rezoning bears the burden of
clearly demonstrating that the existing zoning classification is
no longer reasonable. See Jackson, 221 Va. 334, 269 S.E.2d at
385. When an existing zoning classification and a proposed
zoning classification are both reasonable, a legislative body,
rather than a property owner or a court, has the prerogative to
choose between those classifications. Wendy's of Western Va.,
252 Va. at 18, 471 S.E.2d at 473; Board of Supervisors v. Miller
& Smith, Inc., 242 Va. 382, 384, 410 S.E.2d 648, 650 (1991);
Jackson, 221 Va. at 335, 269 S.E.2d at 386.
As stated above, there was evidence that an R-12 zoning
classification would permit a reasonable use of the property,
since such a classification would conform to the County's
comprehensive plan and would be consistent with other existing
and anticipated residential developments in the area. However,
the evidence also established that the property was
predominantly abutted by parcels zoned for agricultural use, and
that existing agricultural uses were present throughout the
surrounding general area. In addition, there was evidence that
a reasonable use of the property under its present agricultural
zoning would be to subdivide it into two or three lots.
Based on this record, we conclude that Harriss failed to
meet his evidentiary burden of demonstrating that the present
zoning classification of the property was unreasonable, and that
12
the merits of his rezoning application were fairly debatable.
Under these circumstances, the trial court was not at liberty to
substitute its judgment for that of the legislative body. See
County of Lancaster v. Cowardin, 239 Va. 522, 525, 391 S.E.2d
267, 269 (1990); City of Virginia Beach v. Virginia Land
Investment Ass'n No. 1, 239 Va. 412, 415, 389 S.E.2d 312, 314
(1990). Thus, the trial court properly upheld the Board’s
legislative determination.
For these reasons, we will affirm the trial court’s
judgment.
Affirmed.
13