Present: All the Justices
BOARD OF SUPERVISORS OF POWHATAN COUNTY
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 942142
November 3, 1995
REED'S LANDING CORPORATION
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Pursuant to Virginia's conditional zoning statutes, Code
§ 15.1-491.1 et seq., a locality is empowered to enact a zoning
ordinance that "may include and provide for the voluntary
proffering . . . by [a zoning applicant] of reasonable
conditions," Code §§ 15.1-491.2 and -491.2:1, "for the protection
of the community," Code § 15.1-491.1. The dispositive issue in
this appeal is whether, under the facts and circumstances of this
case, the demand of a cash proffer by the Board of Supervisors of
Powhatan County (the Board) violates Code § 15.1-491.2:1.
I
Reed's Landing Corporation (the Developer) filed a petition
for declaratory judgment against the Board, seeking a declaration
that the Board unlawfully denied the Developer's rezoning
application. The Developer alleged that the Board unlawfully
conditioned the rezoning upon a proffer of a cash payment.
After hearing the evidence ore tenus, the trial court found
that the Board did act unlawfully by conditioning the rezoning
upon the proffer of a cash payment and directed the Board to
reconsider the Developer's rezoning application in the light of
the court's finding. The Board appeals.
II
According to well-established principles of law, we must
view the evidence in the light most favorable to the Developer,
the prevailing party at trial. In 1983, Powhatan County enacted
its zoning ordinance. Article 18, entitled "CONDITIONAL ZONING,"
provides, in pertinent part, that a zoning applicant may request
conditional zoning "by voluntary proffer . . . of reasonable
conditions." Article 18 also provides that the rezoning must
give rise to the need for the conditions and that the conditions
must have a reasonable relation to the rezoning.
On June 30, 1993, the Developer sought the rezoning of
approximately 233 acres of land from an agricultural (A-1) zoning
classification to a single-family residential (R-1) zoning
classification. The Developer's rezoning application met all
requirements of the County's zoning ordinance and for an R-1
classification.
At the public hearing on the rezoning application,
conducted by the Powhatan County Planning Commission on August 3,
1993, no one appeared in opposition to the Developer's request.
The planning staff recommended approval of the rezoning, and the
planning commission later unanimously recommended its approval.
On August 9, 1993, however, the Board adopted "proffer
guidelines" which set forth a "recommended" proffer of $2,439 per
lot "to help defray costs of capital facilities related to new
development."
The Developer's rezoning application first came before the
- 2 -
Board on September 13, 1993. At that time, the Developer
proffered a cash payment "under protest," but the Board deferred
the matter to its October 11, 1993 meeting.
At the October 11, 1993 Board meeting and public hearing on
the Developer's rezoning application, no member of the public
spoke in opposition to the rezoning request. It was apparent,
however, that the Board would not approve the rezoning request
unless the Developer agreed to pay $2,439 per lot, even though
the Developer's counsel asserted that the cash proffer demand was
illegal. The Developer refused to yield to the Board's demand,
and the Board denied the rezoning request.
At trial, the County's Director of the Department of
Planning and Community Development testified that a cash proffer
of $2,439 per lot was "expected" prior to the approval of
residential rezoning. He also testified that, since the Board
adopted the proffer guidelines in August 1993, virtually no R-1
rezonings had been approved without the cash proffer.
In his letter opinion, the trial judge recognized that Code
§ 15.1-491.2:1 enabled the Board to accept "voluntary" proffers
from applicants requesting a zoning change. He found, however,
that "the sole reason for denial of [the Developer's] request was
its failure or refusal to proffer $2439 per lot." The judge
concluded, therefore, that "[t]he County is clearly imposing an
impact fee not authorized by statute and which it is without
power to impose."
- 3 -
III
Boards of supervisors, like other local governing bodies,
have only those powers that the General Assembly, expressly or by
necessary implication, confers upon them. Board of Supervisors
v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975); Gordon v.
Fairfax County, 207 Va. 827, 832, 153 S.E.2d 270, 274 (1967);
Board of Supervisors v. Corbett, 206 Va. 167, 174, 142 S.E.2d
504, 509 (1965). If there is a reasonable doubt whether
legislative power exists, the doubt must be resolved against the
local governing body. City of Richmond v. Confrere Club of
Richmond, 239 Va. 77, 79-80, 387 S.E.2d 471, 473 (1990);
Winchester v. Redmond, 93 Va. 711, 714, 25 S.E. 1001, 1002
(1896). However, when an enabling statute is clear and
unambiguous, its intent is determined from the plain meaning of
the words used, and, in that event, neither rules of construction
nor extrinsic evidence may be employed. Confrere Club of
Richmond, 239 Va. at 80, 387 S.E.2d at 473; Marsh v. City of
Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987).
A plain reading of Code § 15.1-491.2:1 in the light of the
foregoing principles of law demonstrates that a county is not
empowered to require a specified proffer as a condition precedent
to a rezoning. The statute clearly states that proffers of
conditions by a zoning applicant must be made voluntarily.
In the present case, the trial court found that the sole
reason the Board denied the rezoning request was the Developer's
- 4 -
refusal to proffer $2,439 per lot, a finding fully supported by
the evidence. Therefore, under the facts presented, the proffer
constituted a condition precedent and was not voluntary within
the meaning of the statute. Consequently, we hold, as did the
trial court, that the Board imposed an unlawful condition on the
Developer. * T
IV
Accordingly, we will affirm the trial court's judgment and
remand the case to the trial court with directions that it remand
the matter to the Board for reconsideration of the Developer's
rezoning application consistent with this opinion.
Affirmed and remanded.
*
It is interesting to note that, since the enactment of Code
§ 15.1-491.2:1, the General Assembly has rejected all efforts to
grant to localities greater power to charge landowners and
developers with the capital costs associated with residential
growth. See, e.g., S.B. 788, 1989 Sess. (no action taken); S.B.
340, 1992 Sess. (passed by Senate, but stricken from House
docket by Committee on Counties, Cities and Towns in 1993); H.B.
1138, 1992 Sess. (passed by indefinitely by Committee on
Counties, Cities and Towns); H.B. 2323, 1993 Sess. (passed by
indefinitely by Committee on Counties, Cities and Towns).
- 5 -