Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz and
Lemons, JJ., and Whiting, S.J.
BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ET AL.
v. Record No. 001484 OPINION BY JUSTICE DONALD W. LEMONS
April 20, 2001
MCDONALD’S CORPORATION, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
In this appeal, we consider the trial court’s review of
the decision of the Board of Supervisors of Fairfax County,
(“Board”) to deny Special Exception Application SE 96-H-032
(“SE application”) filed by McDonald’s Corporation, Bishop
Properties, L.L.C., and Bishop Properties II, L.L.C.
Specifically, we address the trial court’s determination that
the Board’s action was invalid because the denial of the SE
application was discriminatory.
I. Facts and Proceedings Below
McDonald’s is the lessee of approximately 1.20 acres of
property (“McDonald’s” or “subject property”) located at the
intersection of Colts Neck Road and Glade Drive in Reston, a
planned community in Fairfax County. Since December 31, 1995,
McDonald’s has been operating a fast food restaurant at this
location.
On January 13, 1965, the Board approved a rezoning
application, which rezoned approximately 141 acres in the
Reston area of Fairfax County, to a Residential Planned
Community zoning district. 1 The RPC zoning classification was
subsequently replaced by the Planned Residential Community
(“PRC”) zoning district on August 14, 1978. According to
Fairfax County (“County”) Zoning Ordinance 2 § 6-301, rezoning
and development in a PRC “will be permitted only in accordance
with a comprehensive plan and development plan” approved by
the Board.
On July 22, 1970, the Board approved a development plan
for the “Southern Sector [of] Reston,” which was to include a
village center, now known as Hunters Woods Village Center
(“HWVC”). Under the terms of Zoning Ordinance § 6-302(C), a
village center:
[S]hould be a central location for activity of
retail, community and leisure uses on a scale
serving a number of neighborhoods. A village
center should be easily accessible to both
vehicles and pedestrians. Within such a
center, the primary emphasis should be on the
pedestrian circulation system. A village
center should contain uses such as professional
offices, a supermarket, a hardware store,
specialty shops and other [listed] uses.
HWVC currently includes Hunters Woods Village shopping center
(“HWVSC”), an Exxon gas station, and McDonald’s.
1
Included in these 141 acres was the subject property, as
well as land which now contains the Hunters Woods Village
shopping center and the Hunters Square residential
development. The Hunters Woods Village shopping center
consists of 15.28 acres, while the Hunters Square residential
development contains 12.0 acres.
2
The subject property is triangular in shape and is
physically separated from HWVSC and the Exxon station by Colts
Neck Road, an undivided four-lane road that runs along the
east side of McDonald’s. Glade Road is a four-lane divided
road that runs along the southern border of the subject
property. McDonald’s remaining border abuts the edge of
Hunters Square townhouse community (“Hunters Square”). To the
north of Hunters Square is the Hunters Crossing multi-family
development (“Hunters Crossing”). 3
On September 17, 1974, a Non-Residential Use Permit
(“Non-RUP”) was granted for a fast food establishment, known
as Jack In The Box, on the subject property. Subsequent Non-
RUPs were granted on September 1, 1982, for a Popeye’s fast
food restaurant, and on January 2, 1996, for McDonald’s.
Under the terms of the Zoning Ordinance in effect since
August 1978, a fast food restaurant with drive-through
facilities is permissible in a PRC zoning district if the
restaurant is specifically displayed as a drive-through fast
2
Fairfax County Zoning Ordinance will be referred to as
“Zoning Ordinance.”
3
On March 1, 1976, the Board permitted residential
townhouse development immediately adjacent to the subject
property. This development is known as Hunters Square. On
November 1, 1982, the Board approved a development plan
amendment permitting 92 single-family attached or multi-family
units to be built to the west of Colts Neck Road and north of
the subject property. This development is known as Hunters
Crossing.
3
food restaurant on a development plan approved by the Board.
Additionally, if the development plan merely references
commercial use in a designated village center, the drive-
through facilities may be permitted upon obtaining a special
exception or approval of an amended development plan.
On June 19, 1996, McDonald’s filed a SE application with
the Board, in which it proposed to add a drive-through
facility to its restaurant on the subject property. 4 The
proposed drive-through would add 75 square feet to the
existing restaurant for a total of 2,515 square feet. An
October 23, 1996 Staff Report prepared by County staff
recommended approval of the SE application subject to proposed
development conditions. Prior to a Planning Commission
hearing on the application scheduled for November 6, 1996,
McDonald’s requested permission to defer the application to
allow it “time to address the civic concerns that were raised
and to work with additional citizens to obtain their support.”
4
On the same date, McDonald’s filed a corresponding
variance application, VC 96-H-091, requesting permission for
22 parking spaces to remain 6.5 feet from the front property
line adjacent to Ridgehampton Court. Current regulations
require that these parking spaces be more than 10 feet from
the property line. Zoning Ordinance § 11-102(8). Although
these spaces are pre-existing and the SE application did not
propose changing them, the County requires that an existing
condition be brought into conformance with current
regulations, or a variance obtained, when a special exception
is approved. The Board of Zoning Appeals has deferred the
4
The request was granted and the application was reactivated in
May 1997. Several modifications were made to the original SE
application to address concerns that were raised in the
October 23, 1996 Staff Report. 5 On October 22, 1997, the
County staff issued another Staff Report recommending approval
of the modified SE application, subject to proposed
development conditions. On November 5, 1997, the Planning
Commission voted unanimously to recommend to the Board that it
deny the SE application.
The Board held a hearing on the application on December
8, 1997. After testimony from several witnesses, the Board
voted unanimously to deny McDonald’s SE application.
On the same day, the Board voted to approve DPA A-936-3,
an application by Hunters Woods Village Center, L.L.C., the
owner of HWVC, to amend the development plan approved by the
Board in 1965. That application proposed demolition of the
existing shopping center, excluding the gas station, and
construction of a new, 123,000 square foot shopping center and
48 single-family attached residential units. Also, the
consideration of the variance application until resolution of
the SE application.
5
These modifications included, “a second building
addition to replace the proposed speaker post voice ordering
system; a modification of the limits of clearing to reflect
the deletion of retaining walls along the drive-thru aisle
and; a reformulation of the landscape plan to include more
tree-save on the site.”
5
application requested three drive-through facilities,
including one for a free-standing Burger King restaurant.
Other applications approved by the Board on December 8,
1997 included three special exceptions requested by Tall Oaks
Village Center, L.L.C., the owner of the Tall Oaks Village
shopping center (“TOVSC”). 6 One of these applications, SE 97-
H-049, requested approval of a drive-through fast food
restaurant.
On June 1, 1999, McDonald’s filed a Second Amended Bill
of Complaint for Declaratory Judgment and Injunctive Relief
against the Board. 7 McDonald’s sought a declaration that the
Board’s denial of its SE application violated state law
because such action was discriminatory and without a rational
basis, a declaration that McDonald’s has a right to construct
and operate a drive-through window on the subject property,
and an injunction preventing the Board and the County from
interfering with its use of the subject property.
Specifically, McDonald’s alleged that the Board’s denial was
discriminatory because the Board approved drive-through fast
food restaurants for HWVSC and TOVSC. McDonald’s contended
6
TOVSC is a Reston village shopping center located over
two miles to the northeast of HWVC.
7
McDonald’s originally filed a Bill of Complaint on
January 7, 1998. The Board filed a demurrer on February 13,
1998. After the trial court, on April 3, 1998, granted in
6
that “[t]here is no demonstrated real difference that
distinguishes the [subject property] from the Hunters Woods
and Tall Oaks approvals that justify preferring these sites to
the [subject property].”
A bench trial was held on September 27-30, 1999 and
October 14, 1999. Additionally, the trial court and counsel
viewed the subject property on September 28, 1999. On January
27, 2000, the trial court issued an opinion letter, stating
that the evidence clearly demonstrated that McDonald’s was
“subjected to [] different and irrational treatment” by the
Board. The trial court stated that the Board’s denial of the
application “loses all credibility when the same factors cited
by the Board [in denying the application] are waived or
ignored in connection with the approval of the Tall Oaks and
HWSC applications.”
The trial court issued a Final Decree, incorporating its
letter opinion, on March 15, 2000. In the Final Decree, the
trial court declared invalid the Board’s denial of McDonald’s
SE application and enjoined the Board from taking any action
“that would disallow McDonald’s right to construct and operate
a drive-through window on the subject property consistent with
part the Board’s demurrer, McDonald’s filed the Second Amended
Bill of Complaint.
7
McDonald’s application,” subject to imposition of reasonable
development conditions.
On appeal, the Board contends that the trial court erred
in ruling that the denial of McDonald’s SE application was
“discriminatory, arbitrary, and capricious.” The Board
maintains that the two shopping centers utilized by the trial
court for comparison were not similarly situated to the
McDonald’s site and that the Board’s decision was based upon
“numerous rational bases.” Further, the Board argues that the
trial court erred in misapplication of the “fairly debatable
standard.” Finally, the Board alleges that the trial court
erred in permitting McDonald’s to amend its SE application
during the trial and in finding that the SE application
satisfied zoning ordinance requirements.
McDonald’s assigns no cross-error and urges affirmance of
the trial court’s ruling.
II. Standard of Review
When a governing body of any locality reserves unto
itself the right to issue special exceptions, the grant or
denial of such exceptions is a legislative function. Cole v.
City Council of Waynesboro, 218 Va. 827, 837, 241 S.E.2d 765,
771 (1978). A legislative action “is presumed to be valid.”
City Council of Virginia Beach v. Harrell, 236 Va. 99, 101,
372 S.E.2d 139, 141 (1988). On appeal, we review the decision
8
of the trial court to reverse the Board’s denial of McDonald’s
SE application with this principle in mind. As we have
previously stated:
[W]e accord the court’s finding, as with the
usual case, a presumption of correctness, but
we also give full credit to the presumption of
validity of the legislative action involved in
the denial and then, assimilating the two
presumptions, we examine the record to
determine whether the evidence sustains the
court’s finding. In other words, the
presumption of validity of legislative action
does not disappear when a trial court finds
that the action is unreasonable; the
presumption accompanies the legislative action
when the latter is brought to this court for
review, and it is viable until this court holds
with the trial court that the legislative
action is unreasonable.
Board of Supervisors v. Lerner, 221 Va. 30, 34-35, 267 S.E.2d
100, 103 (1980)(internal citation omitted).
III. Analysis
Despite multiple issues advanced by the Board on appeal,
we need only focus upon the narrow issue identified by the
trial court as the basis for its judgment. The trial court
stated:
The question presented here is not whether
the Board’s decision on the McDonald’s drive-
through standing alone is fairly debatable.
Rather, the question is: When viewed with the
Board’s contemporaneous decisions granting the
applications of HWSC and Tall Oaks, is the
Board’s denial of the McDonald’s application
unlawfully discriminatory? If so, has the
Board demonstrated a rational basis for that
discrimination?
9
The trial court found that “[t]he Tall Oaks and Hunters Woods
Village Centers are similarly situated” to the McDonald’s site
and that the denial of McDonald’s SE application was
“inconsistent and discriminatory.”
The presumption of legislative validity that attaches to
the Board’s decision is a presumption of reasonableness. When
presumptive reasonableness “is challenged by probative
evidence of unreasonableness, the challenge must be met by
evidence of reasonableness.” Board of Supervisors v. Jackson,
221 Va. 328, 333, 269 S.E.2d 381, 385 (1980). If the evidence
of reasonableness is sufficient to make the question fairly
debatable, the zoning action must be upheld upon judicial
review. Id. If the evidence of reasonableness is
insufficient, the presumption of reasonableness is overcome
and the zoning action cannot be sustained. Board of
Supervisors v. Snell Constr. Corp., 214 Va. 655, 659, 202
S.E.2d 889, 893 (1974). An issue is said to be fairly
debatable “when the evidence offered in support of the
opposing views would lead objective and reasonable persons to
reach different conclusions.” Board of Supervisors v.
Williams, 216 Va. 49, 58, 216 S.E.2d 33, 40 (1975).
Applying these general principles in Board of Supervisors
v. Allman, 215 Va. 434, 211 S.E.2d 48 (1975), we recognized
10
that evidence bearing on the subject of reasonableness may
include evidence of discriminatory treatment. Holding that
Allman had overcome the presumption of legislative validity,
we noted that:
His evidence established a course of action by
the Board that was inconsistent and
discriminatory. A discriminatory action is an
arbitrary and a capricious action, and bears no
reasonable or substantial relation to the
public health, safety, morals or general
welfare. The reasonableness of the Board’s
action is not fairly debatable, and it will not
be sustained.
Id. at 445, 211 S.E.2d at 55.
Discrimination in zoning decisions is impermissible if it
is unjustified. Justification may be found “if there is a
rational basis for the action alleged to be discriminatory.”
County Board of Arlington v. Bratic, 237 Va. 221, 229-30, 377
S.E.2d 368, 372 (1989). See also County of Lancaster v.
Cowardin, 239 Va. 522, 527, 391 S.E.2d 267, 269-70 (1990).
Thus, for the purpose of considering whether an issue is
fairly debatable, a “rational basis” is synonymous with
“reasonableness.” Clearly, impermissible discrimination in
zoning actions is unreasonable, arbitrary, and capricious.
Consequently, a decision resulting in impermissible
discrimination is not fairly debatable, and will not be
sustained upon judicial review.
11
To sustain a claim of impermissible discrimination, the
party contesting the zoning action must show that “a land use
permitted to one landowner is restricted to another similarly
situated.” Board of Supervisors v. Rowe, 216 Va. 128, 140,
216 S.E.2d 199, 209 (1975). Thereafter, the governing body
must show that “there is a rational basis for the action
alleged to be discriminatory.” Bratic, 237 Va. at 229-30, 377
S.E.2d at 372. That the properties in question are adjacent
to one another is insufficient alone to establish a zoning
discrimination claim. Helmick v. Town of Warrenton, 254 Va.
225, 231, 492 S.E.2d 113, 116 (1997).
Upon review of the extensive record in this case, we hold
that the trial court erred in determining that HWVSC and TOVSC
were similarly situated to the McDonald’s site. The following
are among the factors that distinguish the subject property
from the comparison sites:
1. The subject property is a free-standing parcel of
only 1.2 acres, whereas HWVSC is a shopping center with 15.28
acres and TOVSC is a shopping center with 7.46 acres.
2. The subject property is a single use site, whereas
the shopping centers are multiple use sites.
3. In contrast to the subject property, fast food
restaurants with drive-through facilities in the HWVSC site
and TOVSC site are not directly accessed from public roads.
12
Service roads within the shopping centers serve to mitigate
traffic congestion, whereas no such relief is possible at the
subject property.
4. HWVSC has three separate locations of entrance and
exit. TOVSC has two separate entrance and exit locations. By
contrast, due to the size, configuration, and location of the
subject property close to the intersection of Colts Neck Road
and Glade Drive, the subject property has an entrance/exit on
Colts Neck Road, but only an exit on Glade Drive. Because the
shopping centers have more than one entrance, there are
alternatives to potential traffic blockage or congestion at a
particular entrance. Such alternatives are not available at
the subject property.
5. The entrance to the subject property is only 265
feet from the intersection of Colts Neck Road and Glade Drive.
The northern entrance to HWVSC, which is closest to the drive-
through facility, is approximately 1200 feet from the
intersection. At the TOVSC location, the entrance/exit
locations are 670 feet and “about 940 feet” from the nearest
intersection at North Shore Drive and Wiehle Avenue.
6. Estimated “vehicle trips” differ greatly between the
sites. The subject property with a drive-through window was
estimated to serve 539 vehicles per day per thousand square
feet of gross floor area, whereas the estimate of “vehicle
13
trips” was 62 per day per thousand square feet of gross floor
area at HWVSC.
7. Visual screening requirements for the sites differ
significantly. The subject property is controlled by “Zoning
Ordinance Screening Matrix Transition 3” which requires a 50-
foot wide vegetated buffer. McDonald’s SE application
proposed to modify the buffer to 6.5 feet, a proposed
reduction of 87 percent, along its northwestern border with
the Hunters Square residential community. The application
proposed to modify the buffer to 14.5 feet, a proposed
reduction of 71 percent, along its southern border with the
Machaans Cluster townhouse community across Glade Drive. By
contrast, the drive-through facility at HWVSC is subject to a
different screening matrix altogether (“Transitional Screening
2” requiring a 35-foot wide vegetated buffer) which had been
subject to waiver of 32 percent. The TOVSC drive-through
facility had no screening requirement applicable to it.
8. In contrast to the comparison sites, only the
subject property required a variance to meet the Zoning
Ordinance parking requirements. The McDonald’s parking lot is
just 6.5 feet from the Hunters Square residential property and
98 feet from the nearest residence. By contrast, the parking
lot at the Burger King at HWVSC is 140 feet from the nearest
residence in Hunters Crossing and is separated from the
14
residential community by a four-lane highway. The parking
facilities at TOVSC are 239 feet from the nearest residences.
Having determined that the trial court erred in finding
HWVSC and TOVSC to be similarly situated to the McDonald’s
site, it is unnecessary to consider the Board’s justification
for treating the parcels differently. Similarly, it is
unnecessary to address any of the Board’s remaining
assignments of error. Accordingly, we will reverse the
judgment of the trial court and enter final judgment for the
Board.
Reversed and final judgment.
15