dissenting.
As the record in this case establishes to my satisfaction that the chancellor erred in ruling that the Board of Supervisors acted unreasonably and invalidly in denying the applications for rezoning from RE-1 classification to a category that would permit higher density use I respectfully dissent.
The two tracts, comprising approximately 418 acres of undeveloped land, lie in the southern part of Fairfax County in what the County has designated as Neighborhoods 12 and 13 of the Middle Run, one of three subwatersheds of the Pohick watershed. The Pohick watershed contains approximately 20,000 acres, of which approximately 11,000 acres are in the Main Branch, 2,500 acres in the Middle Run, and 6,500 acres in the South Run.
In 1965, the issuance of bonds was approved, by public referendum, to finance the extension of the County sanitary sewer system *62into the Pohick watershed. The following year the County entered into a contract with two property owners whereby the County, at the expense of the property owners, constructed the extension of sewer trunk lines from the Main Branch of the Pohick into the Middle Run. Reimbursement of the two property owners was to come from landowners connecting their sewer lines to the trunks.
In 1967, the County approved for the Pohick watershed a comprehensive plan, which was revised and amplified in the Restudy of the Pohick Watershed (hereinafter, the Plan), approved by the Board on September 10, 1969. The Plan contemplates ultimate overall density in Neighborhoods 12 and 13 of the Middle Run to range from a maximum of 2.0 dwelling units per acre, under conventional development, to 2.2 dwelling units per acre under cluster development. It contemplates a continuation of existing zoning in the Middle Run until 1975, and then development between 1975 and 1980 to densities throughout the subwatershed to an average of 2.0 dwelling units per acre.
The applications in question, which sought rezoning to R-12.5, a category which permits up to 2.9 dwelling units per acre, or approximately 1,212 houses on the applicants’ lands, were filed in 1970 and 1971, respectively. Action on the applications, long delayed by County officials, was forced by court orders. Based primarily on inadequacy of public facilities to justify urban density development in this area when areas already zoned or developed for urban densities had higher priority needs, the professional staff of the Planning Commission recommended denial of the applications. In September, 1972, the Planning Commission unanimously recommended to the Board that the Wüliams-Mcllvaine application be denied and in November, 1972, unanimously recommended, with one abstention, the denial of the Van Metre application. In November and December, 1972, the Board, with two members absent, unanimously denied the applications.
The Board’s assignments of error raise one crucial question, whether the chancellor erred in ruling that the Board’s action in denying the landowners’ applications for rezoning of their properties from RE-1 to a higher density category was unreasonable and invalid.
There is a presumption of legislative validity in the Board’s actions in denying the applications. When an applicant for rezoning adduces evidence that the existing zoning ordinance, as applied to his land, is arbitrary, capricious and, therefore, invalid, and that the requested *63rezoning is reasonable, he has made a prima facie showing that the denial of his application is unreasonable, and the burden shifts to the legislative body to adduce evidence of reasonableness. If the evidence is sufficient to make the question of reasonableness fairly debatable, the legislative action must be sustained. See City of Richmond v. Randall, et al., 215 Va. 506, 211 S.E.2d 56 (1975); Fairfax County v. Snell Corp., 214 Va. 655, 659, 202 S.E.2d 889, 893 (1974).
The chancellor, who heard the evidence ore tenus, found “as a matter of fact . . . that the public facilities to serve this land are either presently available or will be available in the reasonably foreseeable future.” He further found that property along the eastern boundary of the Van Metre tract and other nearby land to the north were zoned to a higher density than RE-1, and the chancellor held that “[u]nder these circumstances, the Court is of the opinion that to keep this land in one-acre zoning is unreasonable and arbitrary and capricious.”
The chancellor’s findings of fact are, of course, entitled to great weight and, if supported by credible evidence, will be affirmed. Code § 8-491 (Repl. Vol. 1957); White and P & W Oil Co. v. Perkins, 213 Va. 129, 189 S.E.2d 315 (1972).
The evidence of the applicants shows that trunk sewer lines are available and that the moratorium on sewer connections, imposed because of overloaded treatment facilities, will be removed upon completion of construction, projected to be in March or April of 1976, that will double the capacity of the Lower Potomac Treatment Plant.
Evidence as to public school facilities shows that, if the applicants’ lands were rezoned to higher density, the County could accommodate the additional children in the school system. To accomplish this, however, it would be necessary to resort to busing children to under-capacity school buildings, and it might be necessary to use temporary classroom facilities or go to two shifts. The County has a neighborhood school policy whereby schools are located so that elementary school pupils are within walking distance. For this reason the capacity of an elementary school planned for the area has been reduced from 990 to 660 students, and the school will be filled the day it opens. However, the neighborhood school policy is not fully implemented, and the County buses about one half its school population, including some elementary school pupils. Moreover, sub-dividers are generally required to dedicate school sites as a prerequi*64site to approval of their subdivision plans, so that additional buildings may be constructed to meet the additional needs.
The applicants’ evidence shows that roads in the area are being improved and that the Virginia Department of Highways plans in 1977 or 1978 to let bids for further improvement of Old Keene Mill Road to give adequate access from the applicants’ lands eastward to Interstate Highway 95. On the other hand, the Board’s evidence shows that the system of secondary roads near the subject lands is deficient and that the proposed rezoning would increase the use of the road system by as many as 11,000 additional vehicle-trips each day.
On this evidence I agree with the majority opinion that the chancellor’s findings of fact as to the availability of public facilities were not wrong as a matter of law. But a finding that facilities are available or will become available in the reasonably “foreseeable” future to accommodate higher density zoning, although it may be sufficient to show that the requested rezoning would be reasonable, is not of itself sufficient to invalidate the present zoning as to applicants’ lands.
The uncontradicted evidence shows that, unlike the zonings invalidated in City of Richmond v. Randall, supra, and in Boggs v. Board of Supervisors, 211 Va. 488, 178 S.E.2d 508 (1971), the present RE-1 zoning does not of itself effect an unconstitutional denial of due process by depriving the applicants of all beneficial use of their property. It was stipulated that the property could be developed at some profit under RE-1 zoning. The evidence indicates that much greater profit could be realized from higher density development. Applicants’ expert appraiser, McKenzie Downs, was unwilling to say that the developer would make “a substantial amount more money” under higher density zoning. He testified, however, that it “could border on being somewhat ridiculous” to develop the lands under RE-1 zoning “in view of the change of the character of this neighborhood and the fact that on the southeast side of it, R-17 zoning [permitting maximum density of 2.2 dwelling units per acre] has been granted and that land will be developed in that manner.”
There is other evidence that low cost residential property is nonexistent in the county, that the school population has leveled off because young couples with children cannot afford to live in the county, that there is a demand for cheaper housing, and that houses in RE-1 zoning areas now sell for $70,000-$80,000 contrasted with town houses at $40,000-$50,000 in higher density zones.
*65The evidence shows that higher density zoning for the subject lands would not be unreasonable. Our concern, however, is the reasonableness of the Board’s actions in continuing the present zoning. If that is fairly debatable, then the denial of the applications must be upheld.
The Board’s evidence shows that its policy was to retard development in the Middle Run until public facilities could be made available to other areas already zoned to higher density and under development. The Board’s witnesses testified that the Plan contemplates higher density zoning for the entire Middle Run between 1975 and 1980, that higher density rezoning, in accordance with the Plan, had been granted in portions of the Main Branch, and that Neighborhood 14 of the Middle Run, adjacent to higher density development, had already been rezoned to higher density in advance of the schedule projected in the Plan. The Board’s policy, the witnesses asserted, was based on economical use of County resources in providing public facilities in an orderly manner consistent with phased development.
The landowners’ reliance on Board of Supervisors v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959), is misplaced. There, we held invalid an amendment to the Fairfax County zoning ordinance that generally zoned the western two-thirds of the county for one agricultural district with development permitted on lots of a minimum size of two acres. Although it was conceded that the county could properly zone a reasonable area for two-acre lot development, we held that the zoning in question was exclusionary, forcing those with low incomes into the more densely developed eastern one-third of the county, and that it was therefore invalid. We noted that in Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516, 519 (1942), the Massachusetts court held that, in determining the reasonableness of a zoning ordinance, the economic effect of the ordinance could be considered “as more or less incidental.” We also held that the “grandfather” clause in the amendment, which, for a period of two years after adoption of the ordinance, permitted developers to record plats of lots of a minimum size of one-half acre, was lacking in uniformity in violation of the enabling statute.
We further held in Carper that the enabling legislation which authorized counties to adopt ordinances to regulate “the density and distribution of population,” did not give “the right arbitrarily or capriciously to deprive a person of the legitimate use of his property.” We affirmed the finding of the trial court that the two-acre restriction was unreasonable and arbitrary and bore “no relation to *66the health, safety, morals or general welfare of the owners or residents of the area so zoned.”
The enabling legislation has been revised1 since Carper, but the revision has not affected the principle therein set forth, that the Board cannot be empowered to act arbitrarily or capriciously to deprive landowners of the legitimate use of their lands. Insofar as Carper held that any economic effect on the county of rezoning may be considered only incidentally, I conclude that the revision of the enabling legislation (Code § 15.1-489) has modified the holding.
I further conclude, therefore, that in the present case the enabling legislation authorized the Board to provide, through zoning, for phased development “consonant with the efficient and economical use of public funds,” but that this authorization for phased development could not be arbitrarily or capriciously used by the Board to deprive the applicants of the legitimate use of their land. I attach no significance to the failure of the 1972 General Assembly to enact into law S. B. 95 which would have explicitly vested authority in the Board to provide for phased development. The General Assembly may have concluded, as I have concluded, that such authority was already vested in the Board.
We have seen that the Board’s action did not deprive the applicants of all beneficial use of their land, because admittedly the land could be developed under the present zoning. But the chancellor based his *67decision in part on his finding that other adjacent and nearby lands had been rezoned to higher densities. This requires a review of the relevant zoning classification and the Plan on which it is based.
At the time of adoption of the Pohick Plan in 1967 approximately 850 acres in the Middle Run, including the land adjacent to the applicants’ property along the eastern boundary, were zoned R-17. In the 1969 Restudy various policies were approved, including the following:
“Policy 2
The construction of community facilities should occur in accordance with the stages of land development.
— Between now and 1975, the construction of community facilities should be limited to areas in the Main Branch that are north of the Southern Railroad, west of Rolling Road, and in the vicinity of Lorton.
— Between 1975 and 1980, the construction of community facilities should be limited to the Main Branch and Middle Run areas.
— No community facilities should be constructed in the South Run area before 1980.”
The applicants contend that the Board breached its own comprehensive plan by denying the requested rezoning and approving higher density rezoning for other applicants similarly situated. The Board correctly maintains that the comprehensive plan is not a zoning ordinance but is merely a guideline. Fairfax County v. Snell Corp., supra, 214 Va. at 660, 292 S.E.2d at 894 (1974). However, adherence to or departure from the Plan may be considered in determining whether the Board has acted reasonably in fixing zoning classifications and in acting on the rezoning applications of the applicants and others similarly situated, or whether it has denied the applicants their constitutional right to equal protection.
The applicants correctly insist that the Plan contemplates higher density zoning for their lands, but they ignore the timing of the rezoning, as it relates to the provision of public facilities, contemplated by the Plan.
Of the rezonings alleged to show discrimination by the Board against the applicants, all but four were in the Main Branch in areas *68where the Plan called for development of community facilities by 1975. Three of the four rezonings in the Middle Run were in Neighborhood 14, abutting higher density zoning and development to the east in the Main Branch.
The fourth rezoning in the Middle Run of which the applicants complained involves property already zoned R-17 at the time the Pohick Plan was adopted in 1967, and therefore not similarly situated to their property. In 1971 the Board rezoned the tract RTC-10 to permit townhouses, but the Board’s Director of the Division of Zoning Administration testified without contradiction that the rezoning, as approved, merely resulted in .a change in the form of development without any increase in the density.
Although the Board failed to review Middle Run policies each year, as the Plan required, the Board did consider the policies whenever rezoning applications were considered, and formally reviewed the policies in 1973. The Plan was not followed to the letter, and such was not necessary, but the Board followed it as a guideline and, indeed, as to Neighborhood 14, granted rezoning applications sooner than the Plan contemplated.
Tht present case is, in my view, distinguishable from Fairfax County v. Allman, 215 Va. 434, 211 S.E.2d 48 (1975). There the Master Plan approved for the area of Fairfax County which included the Allman property contemplated an ultimate density of 2.5 units per acre but established no guidelines for determining when the ultimate density should be attained. There was no provision for phased development within specified periods of time. In the present case there was such provision which, though not binding, evidences the best judgment of the Board as to availability of public facilities and its good faith intention to permit higher density development within the time limits contemplated in the Plan.
In Allman we held that the presumption of legislative validity that attached to the action of the Board in denying the rezoning application had been overcome by the applicant’s evidence that the action was capricious and arbitrary, that the Board failed to rebut this prima facie case by adducing sufficient evidence to make the matter “fairly debatable,” and that the trial court by necessary implication ruled that the existing zoning ordinance, as applied to the applicant’s property, was unreasonable and invalid. We held, in effect, that the trial court, in making this determination, could properly apply all factors relevant to reasonableness and that the Board’s evidence showing that the property could be developed at a profit under existing zon*69ing was not of itself as a matter of law sufficient to make the reasonableness of the existing ordinance fairly debatable.
We also concluded in Allman that the Board discriminated against the landowner by denying his application for rezoning to a higher density and then granting the application of Clinch Corporation, pending at the same time, to rezone its land one mile away, the development of which involved the same problems for the county. The Board made no effort to distinguish the applications of the two similarly situated landowners, except to state that it had erred in rezoning the Clinch land, and its denial of the Allman application, absent any other justification, was therefore discriminatory.
Mere inequality of treatment among neighboring landowners is not of itself unconstitutional. Any zoning ordinance may involve unequal treatment, but such unequal treatment is proscribed only when it is invidious, or “arbitrary and capricious.” In Allman we affirmed the rule that unequal treatment of similarly situated landowners is “arbitrary and capricious” when it lacks a rational basis and bears no substantial relation to the public health, safety, morals, or general welfare. With respect to the legislative action denying the requested rezoning, the trial court in Allman made such a finding, and we held that there was sufficient evidence to support that finding.
The classifications established here by the Board were based on a rational plan for orderly development of a subwatershed. The Board was justified in pursuing its policies of encouraging greater density in areas already zoned for such development by locating public facilities there before rezoning other lands and incurring the financial burden of installing additional public facilities.
The Board could reasonably determine that the “efficient and economical use of public funds” required deferral, for a reasonable time, of the rezoning of applicants’ lands in order to postpone the cost of improving secondary highways that higher density development of applicants’ lands would require. The secondary roads are there, as the chancellor found, but they are part of a deficient road system that heavier use could make far more deficient. The facilities are available in the county to accommodate the additional school children which the higher density zoning would bring to the school system. But to make these facilities available to the applicants’ lands may require temporarily the extensive busing of school children in violation of the county’s neighborhood school policy. It also may require construction of additional school buildings in areas of lower priority rather than in more highly developed neighborhoods. The *70public facilities which the chancellor found would be available within the reasonably foreseeable future depend upon the appropriation of public funds by the Board. The construction of all public facilities, including schools, in the Pohick Watershed has been programmed in stages in conformity with the schedule of urban development projected in the Plan.
In using its zoning authority to regulate phased development of the county, the Board was following the legislative intent expressed in Code § 15.1-427 that community growth be “consonant with the efficient and economical use of public funds.” The Board adduced sufficient evidence of the reasonableness of its actions in denying the applicants’ request for higher density zoning to make the matter at least fairly debatable. Reasonable men could disagree as to the advisability of approving the applications at the time they were considered by the Board. Consequently, I conclude that the chancellor erred in ruling that the Board’s legislative actions in denying the applications and in continuing the present zoning were arbitrary, unreasonable, and capricious.
I’Anson, C.J., joins in this dissent.
Code § 15.1-427 (Repl. Vol. 1973) provides in pertinent part:
“This chapter is intended to encourage local governments to improve public health, safety, convenience or welfare and to plan for the future development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational, and recreational facilities; that the needs of agriculture, industry and business be recognized in future growth; that residential areas be provided with healthy surrounding for family life; and that the growth of the community be consonant with the efficient and economical use of public funds” (Emphasis added.)
Code § 15.1-489 (Repl. Vol. 1973) provides in pertinent part:
“honing ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public and of further accomplishing the objectives of § 75.7-427. To these ends, such ordinances shall be designed (1) to provide for adequate light, air, convenience of access, and safety from fire, flood and other dangers; (2) to reduce or prevent congestion in the public streets; (3) to facilitate the creation of a convenient, attractive and harmonious community; (4) to expedite the provision of adequate police and fire protection, disaster evacuation, civil defense, transportation, water, sewerage, flood protection, schools, parks, forests, playgrounds, recreational facilities, airports and other public requirements; ... (6) to protect against one or more of the following: overcrowding of land, undue density of population in relation to the community facilities existing or available, obstruction of light and air, danger and congestion in travel and transportation, or loss of life, health, or property from fire, flood, panic or other dangers; . . .” (Emphasis added.)