Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Hassell,
Keenan, and Koontz, JJ.
MELVIN K. HELMICK, ET AL.
v. Record No. 962235 OPINION BY JUSTICE ELIZABETH B. LACY
September 12, 1997
TOWN OF WARRENTON
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
James H. Chamblin, Judge
In this appeal, we consider whether the trial court
properly sustained a demurrer to the landowners' amended bill
of complaint challenging the refusal of the Town of Warrenton
to consent to the vacation of a subdivision plat.
The property at issue is approximately 3.2 acres of land
zoned for multi-family, residential use in the Town of
Warrenton (the Town). The property originally was Part 1 of
Copper Mill, a townhouse subdivision developed by KRC
Corporation. KRC recorded a subdivision plat for Sections 1
and 2 of Copper Mill and obtained approval of a site plan for
building townhouses on both sections. Townhouses were built
and sold on Section 1. There was no development on Section 2,
and the site plan expired.
In 1991, Melvin K. and Myrtlee I. Helmick (the Helmicks)
bought Section 2 at a foreclosure sale. They requested an
extension of the site plan for townhouses on Section 2, but the
Town refused to extend the plan. The Helmicks then sought to
develop the property as an apartment complex for the elderly
1
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
and requested the Town to vacate the subdivision plat
applicable to Section 2 pursuant to § 3-13 of the Town's zoning
ordinance. After a public hearing, the Town voted to withhold
its consent to the vacation of the subdivision plat.
The Helmicks filed an amended bill of complaint asserting
that the Town's refusal to vacate the subdivision plat was
"unreasonable, unwarranted, discriminatory, arbitrary,
capricious" and constituted both a permanent and temporary
taking of their land without just compensation in violation of
Article I, § 11 of the Constitution of Virginia. The Helmicks
also asserted that § 3-13 of the Town's zoning ordinance was
unconstitutional because it did not set out standards to be
applied by the Town in vacating the subdivision plat. The Town
demurred to the amended bill of complaint.
The trial court sustained the Town's demurrer, deciding
initially that the Town's action in refusing to vacate the
subdivision plat was a legislative act left to the discretion
of the governing body. Based on this determination, the trial
court held that the ordinance was constitutional and that the
amended bill of complaint failed to allege facts sufficient to
overcome the presumption of reasonableness attaching to a
legislative act and failed to allege that the Helmicks had been
denied all economic use of their property. The trial court
dismissed the amended bill of complaint with prejudice and
2
without leave to amend. Because we conclude that the trial
2
The Helmicks previously filed an original and a
substitute bill of complaint. The trial court sustained
demurrers to both pleadings but allowed the Helmicks to file
court did not err in sustaining the Town's demurrer, we will
affirm the judgment of the trial court.
I.
The Helmicks first contend that the Town's action in
refusing to consent to the vacation of a subdivision plat is an
administrative, not a legislative act. While there are no
bright-line rules for the determination of whether an act is
administrative or legislative, we have said that administrative
acts generally implement existing laws while legislative acts
create new ones. Whitehead v. H and C Development Corp., 204
Va. 144, 150, 129 S.E.2d 691, 695 (1963). A legislative act
involves the "balancing of the consequences of private conduct
against the interests of public welfare, health, and safety."
Board of Supervisors of Fairfax County v. Southland Corp., 224
Va. 514, 522, 297 S.E.2d 718, 722 (1982).
The ability to regulate the use of land is part of the
police power vested in the legislature which can, in turn, be
delegated to local governing bodies. Id. at 521, 297 S.E.2d at
721. And we have observed that an ordinance that "regulates or
restricts conduct with respect to . . . property . . . is
purely legislative." Blankenship v. City of Richmond, 188 Va.
97, 104, 49 S.E.2d 321, 324 (1948). If allowed by statute,
local governing bodies may delegate the exercise of these
legislative functions to subordinate bodies, officers, or
employees, but the subordinate body's exercise of these
the amended bill of complaint under consideration here.
functions continues to be considered a legislative action.
Southland, 224 Va. at 522, 297 S.E.2d at 722; National Maritime
Union of America v. City of Norfolk, 202 Va. 672, 680, 119
S.E.2d 307, 312-13 (1961).
The Town's action at issue here is authorized by the
Virginia Land Subdivision Act, §§ 15.1-465 through -485. That
Act addresses the approval, rejection, and vacation of
subdivision plats and delegates this portion of the state's
police power to regulate the use of land to local governing
bodies. Board of Supervisors of Loudoun County v. Georgetown
Land Co., 204 Va. 380, 383, 131 S.E.2d 290, 292 (1963).
Section 15.1-481 describes procedures for vacating a
subdivision plat when no lots have been sold and specifically
requires the "consent of the governing body, or its authorized
agent," when the landowners seek the vacation. 3 § 15.1-481(1).
Section 3-13 of the Town's zoning ordinance authorizes the
vacation of subdivision plats, "in accordance with Section
15.1-481, et seq.," but does not delegate that function to any
"authorized agent." Thus, the Town elected to retain exercise
of this function.
In so far as the nature of the power exercised is
concerned, we see no difference between granting or denying a
special use permit, which we have classified as a legislative
act, Byrum v. Board of Supervisors of Orange County, 217 Va.
3
The Helmicks' argument that § 15.1-481(1) implies that
the legislature intended that this function be delegated and
not performed by the governing body is without merit.
37, 41, 225 S.E.2d 369, 372 (1976), and consenting to the
vacation of a subdivision plat. 4 Both actions are taken
pursuant to a delegation of the police power. The
determination whether to vacate a subdivision plat, like the
decision regarding the grant or denial of a special use permit,
is a decision which regulates or restricts the use of property.
The approval and recordation of a subdivision plat
requires a governing body to plan for the impact the type of
development will have on the infrastructure and services which
the locality will have to provide. Vacating a recorded
subdivision plat requires the decision-maker to consider the
desires of the landowner in conjunction with the interests of
the community in light of the circumstances existing at the
time of the proposed vacation. Such balancing of interests is
characteristic of legislative decision-making. Therefore, we
conclude that the trial court correctly determined that the
decision of the Town not to consent to the vacation of a
subdivision plat was a legislative act.
II.
The trial court was also correct in sustaining the Town's
demurrer to the Helmicks' allegations that the refusal of the
Town to consent to the vacation of the plat was unreasonable,
unwarranted, arbitrary, capricious, and discriminatory. On
4
In Byrum, we overruled the holding in City of Winchester
v. Glover, 199 Va. 70, 72, 97 S.E.2d 661, 663 (1957), that the
grant or denial of a special use permit by the city council was
an administrative act. Byrum, 217 Va. at 41, 225 S.E.2d at
372.
judicial review, the Town's legislative act is vested with a
presumption of reasonableness. Southland, 224 Va. at 522-23,
297 S.E.2d at 722; Ames v. Town of Painter, 239 Va. 343, 347,
389 S.E.2d 702, 704 (1990). To withstand a demurrer, the
Helmicks had to allege facts which, if true, would be probative
evidence that refusal to consent was unreasonable. Concerned
Taxpayers of Brunswick County v. County of Brunswick, 249 Va.
320, 328, 455 S.E.2d 712, 716 (1995). If such allegations were
made, the demurrer cannot be sustained, and the Town would be
required to produce evidence that its action was reasonable.
Id.
The facts alleged by the Helmicks as proof of
unreasonableness fall into two categories. The first is based
on the status of adjoining properties. The Helmicks alleged
that an apartment complex exists on the property adjacent to
their property's western boundary, and that construction of an
apartment complex for the elderly has been approved for
property adjoining the southern boundary of their land. The
second complex is located on land zoned as C-1 in which
apartments are not a permitted use. The Town granted a special
use permit for the apartments only three months before it
refused to consent to the vacation of the Helmicks' subdivision
plat. These facts, the Helmicks assert, show that the Town's
action was discriminatory, arbitrary, and capricious.
Refusing to allow a specific use of land is discriminatory
when "a land use permitted to one landowner is restricted to
another similarly situated." Board of Supervisors of James
City County v. Rowe, 216 Va. 128, 140, 216 S.E.2d 199, 209
(1975). The Helmicks' pleadings, however, do not allege that
either adjacent property was subject to an approved subdivision
plat which had to be vacated before the respective apartment
complexes could be constructed. The only allegation supporting
the contention that the properties are similarly situated is
that they are adjacent. Adjacency alone is insufficient to
establish a zoning discrimination claim. Id. at 135, 216
S.E.2d at 206-07.
The second category of alleged facts supporting a claim
that the Town's action was unreasonable relates to the Town's
motivation. The Helmicks allege that the Town refused to
consent to the vacation of the plat "plainly to harass" the
Helmicks because of previous litigation brought by the Helmicks
against the Town. In considering whether a legislative act is
reasonable, however, generally the motives of the governing
body in undertaking the act are immaterial. Ames, 239 Va. at
349, 389 S.E.2d at 705; Blankenship, 188 Va. at 105, 49 S.E.2d
at 324.
The allegations in the pleadings, taken as true, do not
support claims that the action was arbitrary, capricious,
unwarranted, or discriminatory and are insufficient to overcome
the presumption of reasonableness afforded the legislative
action of the Town. Therefore, the trial court properly
sustained the Town's demurrer to these claims. 5
5
The Helmicks also asserted that the trial court erred in
referring to the expectations of adjacent landowners in
determining the reasonableness of the Town's actions because
III.
The Helmicks also assert that the trial court erred in
holding that § 3-13 of the Town's ordinance is constitutional.
The Helmicks argue that the section contains no guidelines or
criteria to be followed in vacating a subdivision plat and, as
such, is over broad and unconstitutional. We disagree.
Section 3-13 states:
Any plat of record may be vacated in accordance with
the provisions of Section 15.1-481, et seq. of the
Code of Virginia.
We first note that, on its face, this ordinance references
certain statutory provisions which must be followed in the
process of vacating a subdivision plat; thus, it cannot be said
that the ordinance contains no more than permission to vacate a
plat, devoid of any guidance. And, as noted by the trial
court, the Helmicks did not attack § 15.1-481 as invalid
because it fails to provide sufficient standards for the
exercise of this delegated authority. 6
More importantly, the general requirement that guidelines
accompany the delegation of legislative authority to avoid
vesting arbitrary discretion in the decision-maker, Andrews v.
Board of Supervisors of Loudoun County, 200 Va. 637, 639, 107
such expectations were not part of the pleadings. We do not
reach this assignment of error because the trial court's
finding that the pleadings were insufficient left the
presumption of reasonableness in place and eliminated the need
for the Town to produce evidence of reasonableness.
6
The Helmicks challenge the constitutionality of § 15.1-
481 here, but because they did not seek to have the statute
declared unconstitutional below, we will not consider the
challenge here. Rule 5:25.
S.E.2d 445, 447 (1959), is subject to an exception first set
out in Gorieb v. Fox, 145 Va. 554, 563-64, 134 S.E. 914, 917
(1926):
where it is difficult or impracticable to lay down a
definite rule, or where the discretion relates to the
administration of a police regulation and is
necessary to protect the public morals, health,
safety and general welfare.
This exception is premised on the understanding that
legislation cannot address every variable which will arise in
the application or administration of the delegated authority.
See also Maritime Union, 202 Va. at 680-81, 119 S.E.2d at 313.
In a previous case challenging the validity of the
Virginia Land Subdivision Act, we recognized that the General
Assembly left considerable discretion to the local governments
in administering the Act. The Act is valid, nevertheless,
because the nature of decisions regarding the subdivision and
development of land requires "the local governing body's
knowledge of local conditions and the needs of its individual
community." Georgetown Land, 204 Va. at 383, 131 S.E.2d at
292. Nor are the decisions of the local governing body made
under the Act shielded from judicial review. The decisions are
always subject to the standard of reasonableness. Id. at 384,
131 S.E.2d at 292. If the governing body exercises its
discretion in an arbitrary, capricious, or unreasonable manner,
the aggrieved party has recourse through the courts. Byrum,
217 Va. at 41, 225 S.E.2d at 373; Gorieb, 145 Va. at 566, 134
S.E. at 918.
The decision in this case, the vacation of a subdivision
plat, not only involves the exercise of the police power, but
also falls neatly into that category of circumstances in which
specific guidelines for making the decision are difficult to
craft and depend on local conditions. As noted above, once a
subdivision plat is approved and recorded, the governing body
and other landowners expect and rely upon development of the
property according to that plan. Whether abandonment of that
plan is advisable for the community will depend on factors
unique to that situation. Thus, local conditions and needs are
the factors most important in making the decision. These
factors cannot be distilled into uniform standards applicable
to every locality and in every circumstance. The exercise of
this discretion by the Town is not absolute, but fully
reviewable, as demonstrated by this litigation. Accordingly,
the trial court correctly held that § 3-13 of the Town's
ordinance is valid.
IV.
Lastly, the trial court properly sustained the Town's
demurrer to the Helmicks' assertion that the Town's refusal to
extend the expired site plan and refusal to vacate the
subdivision plat has deprived them of all economically viable
use of the land without just compensation in violation of
Article I, § 11 of the Constitution of Virginia. The pleadings
do not allege sufficient facts to establish the Helmicks'
claim.
There is no unconstitutional taking unless the
government's action deprives the landowner of all economic use
of the land. Board of Supervisors of Prince William County v.
Omni Homes, Inc., 253 Va. 59, 72, 481 S.E.2d 460, 467 (1997).
The pleadings acknowledge that subdivision of the Helmicks'
property into townhouse lots is proper under the zoning
ordinance. The Helmicks did not allege that they had applied
for, or were denied, a new site plan or that they had complied
with the requirements for obtaining an extension of the site
plan under § 15.1-475(E)(1) and were denied such an extension. 7
Since development of the property with townhouses is an
economically viable use of the property, and the pleadings do
not assert that the Town has precluded such development, there
has been no unconstitutional taking of property.
Accordingly, for the reasons stated, we will affirm the
judgment of the trial court.
Affirmed.
7
Section 15.1-475(E)(1) requires that an application for
extension of a site plan be filed "prior to expiration of a . .
. final site plan." When the Helmicks applied for an extension
of the site plan prior to seeking vacation of the subdivision
plat, the site plan had already expired.