88SN0065
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September 28, 1988 BS
REQUEST ANALYSIS
AND
RECOMMENDATION
88SN0065
RDF Associates
and
William R. Cawthorn
Midlothian Magisterial District
South line of Robious Road
RE UEST: Amendment to Conditional Use Planned Development (Case 865092 Amend-
ed) to permit Convenience Business (B-1) uses on property previously
restricted to a nursing home. A shopping center is planned. Excep-
tion to the 12,000 square foot limitation for individual stores or
shops is also requested for one (1) use.
PLANNING COMMISSION RECOMMENDATION
RECOMMEND DENIAL.
STAFF RECOMMENDATION
Recommend denial of the amendment to permit all B-1 uses. Recommend denial of
the bulk exception to the 12,000 square foot limitation. Recommend approval
of rezoning to Office Business (0) with Conditional Use Planned Development to
permit a limited number of Convenience Business (B-1) uses in conjunction with
office development or a nursing home, plus certain setback exceptions. This
recommendation is made for the following reasons:
A. The Northern Area Land Use and Transyortation Plan designates the
property for office use. Although the property is currently zoned
Convenience Business (B-1), the current Conditional Use Planned
Development restricts the use to a nursing home only. Approval of
this request would allow a typical strip-type shopping center on
property designated for office use and currently restricted to a
nursing home and could encourage further commercial development
along Robious Road, west of Huguenot Road.
B. Approval of Office Business (0) zoning with Conditional Use Planned
Development to permit a limited number of light commercial uses in
conjunction with Office Business (0) uses, would be compatible with
existing office and multifamily development to the south and an
existing fitness center to the west. Similar uses were approved for
the adjacent property to the east. In addition, approval of a
nursing home, as an alternative to office and retail uses, would be
appropriate. The Board of Supervisors approved a nursing home on
the request property with approval of Case 865092. The conditions
recommended herein insure compatibility with adjacent residential
uses to the west.
C. Through the Conditional Use Planned Development process, the Commis-
sion and Board can further ensure land use compatibility, transi-
tion, and quality development.
D. Approval of the requested bulk exception, to permit one (1) store or
shop with a floor area in excess of the 12,000 square foot size
limitation for individual stores or shops in a B-1 District, would
not be appropriate. Commercial uses should be limited to a percent-
age of the gross floor area of any building and developed in con-
junction with office-type uses, similar to that approved on the
adjacent property to the east.
E. Approval of setback exceptions similar to those granted for the
office/retail complex permitted on adjacent property to the east
with the approval of Case 86S092, would be appropriate.
(NOTE: THE CONDITIONS NOTED WITH "STAFF/CPC" WERE AGREED UPON BY BOTH STAFF
AND THE COMMISSION. CONDITIONS WITH ONLY A "STAFF" ARE RECOMMENDED SOLELY BY
STAFF. CONDITIONS WITH ONLY A "CPC" ARE ADDITIONAL CONDITIONS RECOMMENDED BY
THE PLANNING COMMISSION.)
CONATTTnNS
(STAFF) 1. The following uses shall be permitted:
(a) All Office Business (0) uses, plus the following Conve-
nience Business (B-1) uses:
1) Banks
2) Clothes stores
3) Florist shops
4) Optometrists sales and service
S) Savings and loan associations
6) Specialty shops.
Provided that all retail uses shall be limited to a maxi-
mum of thirty (30) percent of the gross floor area of any
floor within any structure and that such uses do not
occupy separate entrance units in a typical, strip-type
building.
(or)
(b) A nursing home and customary accessory uses, subject to
the conditions of zoning approval for Case 86S09Z, except
as modified herein. (P)
(STAFF) 2. Public water and sewer shall be used. Public sewer shall be
extended from the existing trunk public line at the Briarwood
Wellness Center. In conjunction with schematic plan review, a
hydraulic analysis of this sewer line shall be submitted to the
Utilities Department for approval. Prior to release of any
building permit, adequate sewer capacity, as required by the
Utilities Department, shall be provided. (U)
(NOTE: This condition supersedes Condition 2 of Case 865092,
relative to extension of public sewer and water, for any nurs-
ing home.)
(STAFF) 3. Setbacks and Buffers.
(a) In conjunction with the approval of this request, a twenty
(20) foot exception to the fifty (50) foot parking setback
requirement along Robious Road shall be granted, as
measured from the existing right of way of Robious Road.
The setback shall be measured from the existing right of
way of Robious Road, exclusive of the irregularly shaped
"right of way boxes." Within the southernmost twenty (20)
feet of this setback, trees and shrubs of sufficient
height and density shall be planted to minimize the
visibility of paved areas from Robious Road. At a mini-
mum, landscaping shall be accomplished in accordance with
Condition 4.
(b) In conjunction with the approval of this request, a thirty
(30) foot exception to the thirty (30) foot rear yard
setback for buildings shall be granted.
(c) The required side yard setback for buildings, driveways,
and parking along the western property boundary shall be
maintained as a buffer. Existing vegetation within the
buffer shall be retained where possible and shall be
supplemented with landscaping, so as to provide year-round
screening of the view of buildings and parking areas from
the Residential (R-40) property to the west. Other than
landscaping, fencing, irrigation, access as approved by
the Planning and Transportation Departments, one (1) sign,
and utilities that run generally perpendicular through
this buffer, there shall be no facilities located in the
buffer.
At the time of schematic plan review, a conceptual land-
scaping plan depicting these requirements shall be submit-
ted for approval. A detailed landscaping plan shall be
submitted to the Planning Department for review and ap-
proval within thirty (30) days of rough clearing and
grading. The detailed landscaping plan shall include the
general location of existing vegetation to be retained,
the location of proposed vegetation and other improve-
ments, and sections through the buffer that depict how
screening of the use from the adjacent Residential (R-40)
property will be accomplished. (P)
3 88SN0065/BSSEP8/SEPT200
(STAFF) 4. Except as noted herein, the property shall be developed in
accordance with the Corridor Overlay District standards. (P)
(NOTE: This will not require a rear yard setback for driveways
and parking areas.)
(STAFF) 5. Except as noted herein, signs shall comply with the require-
ments of the Corridor Overlay District requirements for Office
Business (0) Districts. Also, one {1) freestanding sign shall
be permitted along Robious Road to identify the Briarwood
Wellness Center. The Briarwood Wellness Center sign shall not
exceed an aggregate area of sixty (60) square feet, a height of
fifteen (15) feet, and shall comply with Corridor Overlay
District requirements relative to setbacks and lighting. (P)
(STAFF) 6. The developer shall provide an accurate account of the drainage
situation showing existing drainage and the impact this devel-
opment will have on the surrounding area. The developer shall
submit a construction plan to Environmental Engineering provid-
ing for on-site and off-site drainage facilities. The plan
shall be approved by the Environmental Engineering Department
and VDOT, and all necessary easements shall be obtained prior
to any vegetative disturbance. The approved off-site plan may
have to be implemented prior to clearing. (EE)
(STAFF) 7. Structures shall not exceed a height of three (3) stories; a
size of 10,000 square feet each, and shall be compatible in
architectural style to the adjacent office building to the
south. (P)
(STAFF) 8. This parcel shall be developed under the Corridor Overlay
District standards relative to access and internal circulation
(Paragraph 21-b7.20 of the Chesterfield County Code). (T)
(NOTES: (a) These conditions supersede all conditions previously
imposed with the approval of Case 86S092 for any
office or commercial uses on the request property.
(b) Except as noted herein,
imposed with the approval
for any nursing home and
quest property.
all conditions previously
of Case 86S092 shall apply
accessory uses on the re-
(c) Prior to obtaining final site plan approval or build-
ing permits, schematic plans must be submitted to the
Planning Commission for approval.)
GENERAL INFORMATION
Location: South line of Robious Road, approximately
250 feet southeast of Wiesinger Lane. Tax
Map 8-16 (1) Parcel 2 (Sheet 2).
'' `r11I
Existing Zoning: B-1 with Conditional Use Planned
Development
Size: 9.7 acres
Existing Land Use: Single family residential, commercial, or
vacant
Adjacent Zoning & Land Use: North - R-TH with Conditional Use
Planned Development & 0 with
Conditional Use Planned
Development; Vacant (Belgrade)
South - R-7 with Conditional Use & 0;
Multi-family residential, and
office
East - B-1 with Conditional Use Planned
Development; Vacant
West - R-40 with Conditional Use Planned
Development; Commercial (Briarwood
Wellness Center)
Utilities: 16 inch water line located along Robious
Road. Use of public water intended.
(Condition 2)
Lies in Falling Creek sewage drainage area.
8 inch trunk sewer line located approxi-
mately 300 feet northwest of site along
Wiesinger Lane. In addition, existing 8
inch trunk sewer line located approximately
500 feet southwest of site at Briarwood
Wellness Center. Use of public sewer
intended. Sewer service should be extended
from the existing public sewer line on the
Briarwood Wellness Center property. Hy-
draulic analysis of this sewer line should
be performed to insure adequate capacity.
(Condition 2)
Environmental Engineering: Site is low and poorly drained with inade-
quate outfall. Site drains to existing
watercourse traversing the adjacent proper-
ty to the west and along the existing
railroad right of way and eventually to
Falling Creek. May be necessary to obtain
off-site easements and make off-site im-
provements. Existing storm water service
parallel to the railroad right of way does
not have adequate capacity to serve this
site. (Condition 6)
5 88SN0065/BSSEP8/SEPT200
Concrete curb and gutter should be in-
stalled around the perimeter of all parking
areas and driveways. (Condition 4)
Fire Service: Midlothian Fire Station, Company ~5. At
present, fire service capability adequate.
County water flows and fire hydrants must
be provided in compliance with nationally
recognized standards.
General Plan
(Northern Area Land
Use and Transporta-
tion Plan): Office
Transportation: Existing zoning conditions limit develop-
ment of this parcel and the adjacent parcel
to the east to specific uses that would
generate approximately 2,100 average daily
trips. The current request does not limit
the development to a specific use or densi-
ty; therefore, it is difficult to antici-
pate traffic generation. Based on the
applicant's Master Plan, the project could
generate approximately 10,363 average daily
trips. These vehicles will be distributed
along Robious Road, which had a 1986 traf-
fic count of 16,056 vehicles per day and
Huguenot Road, which had a 1987 traffic
count of 25,705 vehicles per day. Corridor
Overlay District standards, relative to
access and internal circulation (Section
21-67.2 of the County Zoning Ordinance),
should apply to this proposed development
or any other office/retail type uses ap-
proved (Condition 8). These standards will
require the developer to submit a traffic
impact analysis to the Transportation
Department for approval. This analysis
should consider projected "background" and
"committed development" traffic for the
area, in addition to the traffic generated
by this development. In addition, this
analysis should identify mitigating roadway
improvements based on requested densities
and land uses to achieve an acceptable
level of service. Based on the applicant`s
Master Plan, these roadway improvements may
include additional pavement, curb, and
gutter along Robious Road for an additional
third through lane plus a separate right
turn lane at each access, additional pave-
ment, curb, and gutter along Huguenot Road
6 'N0065/BSSEP8/SEPT200
and cost participation in a traffic signal
at the Robious Road/Briarwood Drive/Robious
Crossing Drive. Roadway improvements along
Robious Road will require dedication of
additional right of way. In order to
achieve an acceptable level of services
('D' or better for a 20-year design),
densities as indicated on the Master Plan
may have to be reduced.
Access is proposed to Robious Road and
Huguenot Road. Existing zoning permits
access to Robious via Briarwood Wellness
Center private drive, as a shared access,
and one entrance/exit between .Briarwood's
private drive and Huguenot Road. Any
additional access to Robious Road should
not be permitted. The proposed access to
Huguenot Road would require a crossing of
the Southern Railway. The County has not
received any indication that this access
will be approved by the Southern Railway
Systems. If this access is approved by
S.R.S., improvements should be provided to
ensure that it is safe and adequate. These
improvements would include flashing lights
and gates for the railroad crossing, ade-
quate setback and design of parking areas
and driveways from the railroad right of
way for internal circulation, and addition-
al pavement, curb, and gutter along
Huguenot Road to accommodate turning vehi-
cles storage. If the access is not ap-
proved, traffic entering and exiting the
site should be limited to the Briarwood
Wellness Center Drive and Robious Road.
DISCUSSION
On May 27, 1987, the Board of Supervisors, upon a favorable recommenda-
tion by the Planning Commission, approved rezoning with Conditional Use
Planned Development on the request property and property to the east
(Case 86S092 Amended). Uses on the request property were limited to a
nursing home and customary accessory uses. Uses on the adjacent property
to the east were limited to Office Business (0) uses and a limited number
of retail uses not to exceed a maximum of thirty (30) percent of the
gross floor area of any floor within a structure. Conditions were
imposed to ensure quality development, land use compatibility with exist-
ing area development, and to ensure that buildings do not project a
typical, strip-type appearance. Specifically, conditions similar to the
subsequently adopted Corridor Overlay District standards were imposed.
In addition, exceptions to required setbacks from Robious Road, from the
7 88SN0065/BSSEP8/SEPT200
Southern Railroad right of way and exception to the side yard setback for
the nursing home adjacent to the Briarwood Wellness Center, were granted.
Subsequent to the approval of Case 86S092, a certificate of need for the
approved nursing home on the request site was denied by the State.
The applicant now seeks to amend Case 86S092 to permit all Convenience
Business (B-1) uses on the property. In addition, the applicant requests
an exception to the 12,000 square foot limitation for individual shops
and stores in B-1 Districts, for one (1) use. A shopping center is
planned.
The Northern Area Land Use and Transportation Plan designates the request
property for office use. Although the property is currently zoned Conve-
nience Business (B-1), the approved Conditional Use Planned Development
restricts the use to a nursing home and customary accessory uses. It
should be noted that, at the time of zoning approval for Case 86S092, it
was the applicant's intent to develop the request property and adjacent
property to the east for a nursing home and office complex with limited
retail uses. Approval of the requested amendment would allow typical
strip shopping center on property designated on the Plan for office use
and currently restricted to a nursing home, and may encourage further
commercial development along Robious Road, west of Huguenot Road. It
should also be noted that, at the time of zoning for Case 865092, staff
recommended that office use with limited retail, similar to the mix of
uses approved for the adjacent property to the east, be approved for the
request property. However, the Board of Supervisors denied the recom-
mended office and retail uses and approved the nursing home and accessory
uses only.
Adjacent property to the south is zoned Office Business (O) and Residen-
tial (R-7) with Conditional Use and is occupied by office and multi-
family uses. Property to the west is zoned Residential (R-40) with
Conditional Use Planned Development and is occupied by the Briarwood
Wellness Center. Vacant property to the north is zoned Office Business
(O) and Residential Townhouse (R-TH) with Conditional Use Planned Devel-
opment to permit a mix of residential, office, and commercial uses
(Belgrade). Approval of the applicants' requests would allow a typical
strip-type shopping center to be developed in an area that is charac-
terized by residential, office, and recreational uses. Approval of
Office Business (O) zoning and land uses with Conditional Use Planned
Development to permit limited retail uses, if properly conditioned, would
be compatible with existing office and multifamily development to the
south and an existing fitness center to the west (Condition 1). In addi-
tion, approval of a nursing home, as an alternative to office and retail
uses, would be appropriate. These uses would serve as an effective
transition between the Huguenot Road commercial corridor and existing
residential development along Robious Road to the west.
Through the Conditional Use Planned Development process, the Commission
and Board can further ensure land use compatibility, proper land use
transition, and quality development. Any nursing home developed on the
property should comply with the approved conditions of zoning for Case
~,r
86S092 (Condition 1). The recommended conditions for the office/commer-
cial uses are similar to the conditions imposed on the adjacent property
to the east. Conditions 4 and 5 would require compliance with the "Cor-
ridor Overlay District" standards and are similar to conditions imposed
on recently approved development in the vicinity of the Huguenot Road
corridor. These conditions address concerns relative to landscaping,
screening of utilities and loading areas, lighting, paving, architectural
quality, and signs.
The following setback exceptions were granted with approval of Case
86S092:
1. A twenty (20) foot exception to the fifty (50) foot parking
setback along Robious Road.
2. A twenty (20) foot exception to the twenty (20) foot side yard
setback for buildings adjacent to residential districts for the
nursing home.
3. A thirty (30) foot exception to the thirty (30) foot rear yard
setback for buildings.
These exceptions were requested to accommodate the structure designed to
house the proposed nursing home and the associated parking and driveway
areas. The parking setback exception along Robious Road and the rear
yard building setback exception also applied to the adjacent property to
the east. Approval of similar parking and driveway setback exceptions
for the recommended office/retail uses, if conditioned to provide ade-
quate landscaping to minimize the visibility of parking areas, would be
appropriate (Condition 3). Approval of reduced building rear yard set-
backs along the Southern Railroad right of way would not represent an
encroachment upon adjacent land uses. Property to the south (rear) of
the request site is occupied by the Southern Railroad right of way.
Given the fact that the railroad right of way separates the request
property from adjacent uses to the south, approval of rear yard setback
reductions for buildings would be appropriate (Condition 3). Condition 3
(c) would require screening of parking areas and driveways from the rear
yards of existing residences in Briarwood Subdivision. These residences
back up to the entrance/exit driveway of the Briarwood Wellness Center.
Originally, an exception to the required side yard setback, adjacent to
residentially zoned property to the west, was granted to accommodate a
nursing home for which a detailed Master Plan and elevations had been
submitted (Condition 3 c.). Approval of a similar exception would only
be appropriate for the nursing home approved with Case 86S092. There-
fore, staff does not recommend reduction of the required side yard set-
back for any office and/or retail development.
CASE HISTORY
Planning Commission Meeting (7/19/88):
At the request of the applicant, the Commission deferred this case for
thirty (30) days.
9 88SN0065/BSSEP8/SEPT200
Staff (7/20/88):
The applicant was advised in writing that any new information must be
submitted no later than July 25, 1988, for consideration at the Com-
mission's August public hearing.
Staff (7/28/88):
To date, no additional information has been submitted.
Planning Commission Meeting (8/16/88):
There was opposition present. The applicant did not accept staff's
recommendation.
On motion of Mr. Kelly, seconded by Mr. Warren, the Commission resolved
to recommend denial of this request.
AYES: Unanimous.
The Board of Supervisors on Wednesday, September 28, 1988, beginning at 2:00
p.m., will take under consideration this request.
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BROWDER. RUSSELL. 1~ZORRIS AND Bi?THER
a ~.~
MEMORANDUM
T0: Interested Parties in the
Zoning of 9.672 Acres
FROM: Browder, Russell, Morris & Butcher
DATE: September 20, 1988
RE: Zoning of 9.672 Acres for RDF Associates
I. Introduction.
RDF Associates, a North Carolina general partnership
("RDF"), entered into a contract dated March 4, 1988 (the
"Contract"), to purchase from C. F. Cumin, Jr., Betty L.
Cumin, James T. Waddill, IV, Ann G. Waddill and Pioneer
Development Corporation (collectively, the "Sellers"),
9.672 acres (the 'Property") lying on the southern line of
Robious Road near its intersection with Huguenot Road in
Chesterfield County (the "County'), Virginia. The Contract
is subject to the condition in paragraph 6(a) that RDF "is
able to obtain a rezoning approved by the Chesterfield
County Board of Supervisors of the Property to B-1 zoning
classification with a conditional use plan
development...which will allow the construction of one
store which contains in excess of 12,000 square feet." The
proposed rezoning (the "Proposed Rezoning') would allow the
development on the Property of a strip shopping center with
~'`
approximately 110,000 square feet of retail space, anchored
by a 40,000 square foot grocery store, with two out
parcels, each containing an office building with 25,000
square feet of space (the "Use").
At its August 16, 1988 meeting, the County Planning
Commission (the "Commission") rejected RDF'S application to
grant a variance to the current zoning of B-1 so as to
delete the sole conditional use as that of a nursing home,
which resulted in the Property remaining in its current
useless condition, and further denied RDF's application to
vary the B-1 zoning and allow one store in excess of 12,000
square feet. If, in fact, the County Board of Supervisors
(the "County Hoard") follows the recommendation of the
Commission at its September 28, 1988 meeting and denies the
application of RDF to allow the Property to return to its
B-1 condition without the conditional use of a nursing home
or the B-1 condition with the variance dealing with the
12,000 square foot exception, then it will leave the
Property in its current useless condition. We have been
asked to outline the reasons why this course of action
would be imprudent and what rights RDF or other interested
parties may have in that event.
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~''' `
II. Facts
Prior to 1987, approximately two-thirds of the
Property was zoned for low density residential use (R-40),
which allows one residence on every 40,000 square feet. In
addition, R-40 use would allow a conditional use of a
nursing home. The Board could have achieved the current
use earlier by refusing B-1 but chose to adopt B-1 with the
conditional use. The other one-third, containing 3.3 acres
and fronting on Robious Road, was zoned Convenience
Business (B-1). In 1987, the Sellers entered into a
contract to sell the Property to Health Quest Corporation
("Health Quest"), which contract was conditioned on (a) the
rezoning of the Property to permit the building of a
nursing home and (b) the granting of a certificate of need
to allow the operation of a nursing home on the Property.
In 1987, Health Quest applied for rezoning of the
Property to allow a nursing home. Napier and Company, the
owner of a 3.0 acre tract ("Tract A") adjacent to and east
of the Property, at the southwest intersection of Robious
Road and Huguenot Road, joined in the rezoning application
to have its property rezoned from R-40 to B-1. On May 27,
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~'
'~1~
1987, the County Board, pursuant to a recommendation of the
Commission, approved the rezoning of the Property and
Tract A to B-1, but subject to strict Conditional Use
Planned Development proffers and conditions (the "Current
Zoning"). The use of Tract A was limited to Office
Business use and certain restricted convenience businesses.
The use of the Property was limited to a "nursing home and
customary accessary uses only."
After the rezoning, the certificate of need for the
proposed nursing home was denied by the State Health
Department of the Commonwealth of Virginia. Therefore,
Health Quest terminated its contract pursuant to its terms,
and the Sellers were left with a property which was
useless. The Current Zoning only permits a nursing home,
but a nursing home cannot be operated on the site without a
certificate of need. Further, it is very unlikely that, in
the foreseeable future, any new nursing homes in the County
will be approved.
Certificates of Need ("COLA's") for nursing homes are
reviewed and granted by the Division of Resources
Development of the State Health Department (the "DRD").
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~' '''
The CON's are reviewed on a planning district basis. The
planning district in which the Property lies includes the
City of Richmond and the Counties of Chesterfield, Henrico,
Hanover, Goochland, Powhatan and Charles City. In
reviewing applications for nursing home CON's, the DRD uses
a planning horizon of five years. Because there already is
a 36 bed surplus in nursing homes in this planning district
for 1992, no new CON's would be approved this year.
Further, the state legislature has placed a one year
moratorium on the granting of CON's, which started on
July 1, 1988. The DRD therefore will not even take
applications (except under certain stringent exceptions)
for CON's until March 1, 1989, with the next CON's being
granted in July, 1989. At that time, it is projected that
there will only be an increased need of 69 beds in the
planning district. After subtracting the 36 bed surplus,
only 33 more beds can be approved for 1993. Those beds
will probably be added to existing facilities, and no new
facilities will be approved. As a result, the Property
with the Current Zoning will remain useless for the
foreseeable future.
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~'
In 1988, RDF entered into the Contract with the
Sellers with knowledge of the Current Zoning, but with the
reasonable belief that the County Board would approve the
application and remove the conditional use restriction,
leaving the Property in its current zoning of B-1 with the
12,000 square foot exception. As shown below, that denial
of that application would be unreasonable and should be
overturned.
III. Status of the Law
The adoption and application of a zoning ordinance is
a valid exercise of the police power of a local government,
and, if used properly, does not violate constitutional due
process and equal protection. However, in exercising this
police power, a local government must respect the rights of
landowners and cannot be discriminatory, arbitrary or
capricious. A local government is held to a test of
reasonableness between the means used and the ends sought
by its zoning regulations, which ends must promote a public
purpose, the public health, safety, morals or welfare.
Historically, the courts have protected the rights of
landowners against improper zoning by granting injunctions
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against enforcement of that zoning by the local government.
Recently, the United States Supreme Court has decided two
cases which evidence a trend of the judiciary to expand the
rights of landowners in zoning cases, and to compensate
them with monetary damages in instances of discriminatory
zoning. In First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, California, 107 S. Ct.
2378 (1987), after a flood destroyed numerous buildings,
the county adopted an ordinance which prohibited any
rebuilding on flooded properties. The Court held .that the
regulation went too far by denying all use of the land.
That action constituted a taking without just compensation
under the Fifth Amendment of the United States
Constitution, as incorporated against the states by the
Fourteenth Amendment. The Court held that monetary damages
were appropriate in such a case. In Nollan v. California
Coastal Commission, 107 S. Ct. 3141 (1987), the commission
attempted to condition the approval of a building permit
for a beach house upon the granting by the property owners
of a public access easement to the beach. The Court held
that the granting of the easement had no rational relation
to the approval of the permit, and "if it wants an easement
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+'
across the Nollans' property, it must pay for it." Id., at
3150.
Virginia has kept fairly up-to-date with its
development of law in this area. There is reason to
believe that the Commonwealth would fall in line with the
trend referenced in First English and Nollan. In its
statutes, Sections 15.1-486, et seq., of the Code of
Virginia of 1950, as amended (the "Code"), give local
governments the right to adopt zoning ordinances and sets
out various guidelines for such ordinances.
Section 15.1-489 lists the permitted purposes of such
ordinances and Section 15.1-490 list the matters to be
considered in drawing and applying such ordinances. In the
courts, the Virginia Supreme Court has decided several
cases in recent years in this area. Those cases have
developed a well-established formula which will be used to
decide any particular case regarding a county's or
municipality's decision in a zoning matter brought by an
owner, contract purchaser or other person with an interest
in the property. Any such person has standing to file such
a case.
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The legislative branch of a local government in
the exercise of its police power has wide discretion
in the enactment and amendment of zoning ordinances.
Its action is presumed to be valid so long as it is
not unreasonable and arbitrary. The burden of proof
is on him who assails it to prove that it is clearly
unreasonable, arbitrary or capricious, and that it
bears no reasonable or substantial relation to the
public health, safety, morals, or general welfare.
The court will not substitute its judgment for that of
a legislative body, and if the reasonableness of a
zoning ordinance is fairly debatable it must be
sustained. [Citations omitted.] Board of Supervisors
of Fairfax County v. Snell Construction Corporation
and Preston Construction Corporation, 214 Va. 655,
658, 202 S.E.2d 889 (1974).
We have established the following test for
determining whether the presumption of reasonableness
should stand or fall. If the presumptive
reasonableness of zoning action is challenged by
probative evidence of unreasonableness, the challenge
must be met by evidence of reasonableness. If such
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evidence of reasonableness is sufficient to make the
issue fairly debatable, the legislative action must be
sustained; if not, the presumption is defeated by the
evidence of unreasonableness and the legislative act
cannot be sustained. Board of Supervisors of Fairfax
County v. Virgil Jackson, 221 Va. 328, 333, 269 S.E.2d
38, (1980).
An issue may be said to be fairly debatable when,
measured by both quantitative and qualitative tests,
the evidence offered in support of the opposing views
would lead objective and reasonable persons to reach
different conclusions. Id., at 333.
The exercise of the police power is subject to
the constitutional guarantee that no property shall be
taken without due process of law and where the police
power conflicts with the Constitution the latter is
supreme, but courts will not restrain the exercise of
such power except when the conflict is clear. Board
of Supervisors of Fairfax County v. Roy G. Allman,
Trustee, Et A1., 215 Va. 434, 444, 211 S.E.2d 48
(1975).
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'~rrr" ,,
IV. The Current Case.
The current zoning of the Property will only allow a
nursing home on this B-1 property. If, in fact, the Board
were to adopt the recommendation of the Commission for
office use with limited business use, or return the
Property to R-40, it would be tantamount to down zoning
this Property, which would obviously be unreasonable. All
of those uses are unreasonable for the Property and have no
substantial relation to the public welfare. To allow the
property to remain in its current zoning or what the
Planning Commission has suggested would do nothing except
appease the adjacent property owners, who are
understandably happy with an undeveloped piece of property
that could never be developed. On the contrary, the
Proposed Rezoning for commercial business uses is the
highest and best use for the Property, and would be very
beneficial to the community.
The proposed conditional use as a nursing home is
clearly unreasonable and confiscatory. As shown in the
First English case, a zoning which denies all use of the
property cannot be sustained and can subject the government
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to monetary damages. As shown above, no owner will be able
to obtain a CON for the Property in the foreseeable future,
if ever, so, for that time period, the proposed use as a
nursing home denies all use of the Property. See also City
of Covington v. APB Whiting, Inc., 234 Va. (1987), and
Gail E. Boggs and Mary E. Boggs v. Board of Suprevisors of
Fairfax County, Virginia, 211 Va. 488, 178 S.E. 2d. 588
(1971). In rebuttal, the County may argue that the nursing
home use is the current zoning, which zoning was acquiesced
to by the Sellers in the 1987 rezoning hearings. However,
as several Virginia cases have made clear, a change in
zoning is particularly appropriate where there has been a
change in circumstances or a mistake which makes a previous
rezoning inappropriate. Here, the 1987 rezoning for a
nursing home was not a mistake, but the inavailability of
CON's certainly is a change in circumstances which makes a
new zoning classification reasonable and appropriate. No
one would have ever predicted the CON would have been
denied, nor that one may never again be available in this
area.
The other proposed use of the Property, as office
buildings or specialty convenience businesses, is likewise
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unreasonable. RDF has not asked for thoses uses and such a
zoning would force the owners to use the Property in a
manner they do not want. Further, the area near the
Property is saturated with office space and could not
absorb the space that the County wants RDF to put on the
Property. The properties to the north and south of the
Property are zoned for office use, along with numerous
other properties on Huguenot Road. Expert appraisers could
also show that constructing only the limited kind of
convenience shops which the County has allowed would be
ecomonically unreasonable and not draw sufficient customers
to the center.
The County may rely on the fact that this Property is
designated for office use on the comprehensive plan for the
area which is entitled the Northern Area Land Use and
Transportation Plan, adopted by the County on August 13,
1986. That plan was authorized by Section 15.1-446.1 of
the Code. However, "a comprehensive or master plan does
not have the status of a zoning ordinance. It is advisory
only and serves as a guide to a zoning body." Allman,
supra, at 441. See also Snell, supra, and Board of
Supervisors of Fairfax County v. Thomas R. Williams, Et
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~d'
Al., 216 Va. 49, 216 S.E.2d 33 (1975). The portion of the
Northern Area Plan for the area of the Property is itself
subject to challenge because of the very low percentage of
commercial use allowed, and the high percentage of possibly
inappropriate office space. By following that plan, the
County is guilty of being exclusionary for commercial uses
in this area of the County, and therefore discriminatory in
its zoning decisions. See Williams, supra, and Allman,
supra.
Because the uses allowed by the New Zoning are
unreasonable, the County may try to suggest a return to
pre-1987 residential zoning. However, by already rezoning
the Property to commercial uses, the County has admitted
that the Property is inappropriate for residential use. It
is located at a heavily trafficked intersection, it is
along a railroad right of way, and commercial uses are
located on the adjacent parcels. Residential use would not
be appropriate.
Following the formula used by the Virginia Supreme
Court, RDF can overcome the presumption of legislative
validity by not only showing the unreasonableness of the
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County's position, but also by showing that the owner's
proposed use is the most appropriate for the Property. A
key consideration in that analysis is that the Proposed
Rezoning would allow the most valuable use for the
Property, provide the most jobs for the community and
increase the tax base. As stated above, office or limited
retail use would not be economically reasonable, but the
Proposed Rezoning would be the most valuable use for the
Property. "The General Assembly has recognized that it is
in the public interest that private land not required for
public use be put to its optimum use to fulfill societal
needs." Snell, supra, at 657. Section 15.1-489 of the
Code provides that one of the purposes of zoning should be
"...to encourage economic development activities that
provide desirable employment and enlarge the tax base."
Section 15.1-490 of the Code further provides that zoning
should be accomplished with consideration "...for the
conservation of properties and their values and the
encouragement of the most appropriate use of land
throughout the county or municipality."
In many Virginia cases, the relative economic value of
a piece of property under alternative zoning classes has
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been a strong consideration. "While a rezoning...cannot be
justified solely upon the ground that such represents its
best and most profitable use, that does not mean that
economic gain or loss is not a relevant factor to be
considered." Town. of Vienna Council v. Karl E. Kohler. Et
A1., 218 Va. 966, 975, 244 S.E.2d 542 (1978). In Williams,
supra, the Court recognized that while "the owners could
develop the land under its existing...zoning and 'not lose
money,' an expert appraiser testified that it would 'border
on [the] ridiculous' to develop under existing zoning." At
56. See also Allman, supra, and Board of Supervisors of
Fairfax County v. David L. Pyles, 224 Va. 629, 300 S.E.2d
79 (1983).
Another important fact is the location of the
property, that it "is in close proximity to and fully views
commercial property." Kohler, supra, at 971. Several
properties situated similarly to the Property do have
commercial zoning. To the east of the Property across
Huguenot Road is a shopping center, with similar uses to
those in the Proposed Rezoning. Sites zoned for commercial
uses are located to the north of the Property and along
Huguenot Road. There is no rational reason to give a
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preferred status to those other locations. "No
demonstrated real difference distinguishes the various
properties and justifies granting preferred status to one
property while denying it to another." Williams, supra, at
60. See also Kohler, supra, and Pyles, supra.
To the west of the Property, between it and
residential lots, is the commercial use of a fitness
center. It seems rather inappropriate for that Briarwood
Wellness Center to complain of any similar commercial use
on land adjacent to it, as shown in the record of the
Commission. "We observe that while the views of persons
owning neighboring property should be considered, property
owners have no vested right to continuity of zoning of the
general area in which they reside, and the mere purchase of
land does not create a right to rely on existing zoning."
Kohler, supra, at 976. It is more important that the Use
will not encroach on residential areas because of the
buffering effect of the health center and the buffers
proffered by RDF to the County. The Use is a very
reasonable transitional use between the busy roadways it
abuts and the residences to the rear. As many cases have
stated, a zoning boundary line is more appropriate off a
street than down the center of a street.
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Also important is that the Use will have no adverse
impact on public facilities. Section 15.1-489 of the Code
states that zoning should "...facilitate the provision of
adequate police and fire protection, disaster evacuation,
civil defense, transportation, water, sewerage, flood
protection, schools." Section 15.1-490 says that zoning
decisions should consider "...the transportation
requirements of the community, and the requirements for
housing, schools, parks, playgrounds, recreation areas, and
other public services." In this case, sewer and water
service, and police and fire protection are available to
the Property. The Use will not impact on schools or parks,
and RDF has proffered conditions to the County to control
the traffic flow to the Property with appropriate access
points. Rather than have an adverse impact on the
community, it is RDF's desire to benefit the community.
The Use will do that with the provision of jobs and needed
services, and the construction of an attractive, high
quality center.
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V. Conclusion
Virginia has always recognized the rights of
landowners, and the further advances in that area by the
United States Supreme Court should give Virginia more
reason to protect against discriminatory zoning. In this
case, the County will lose under the Virginia standard of
review in zoning cases. The New Zoning proposed by the
County is unreasonable, its appropriateness not even being
fairly debatable.
[T]he purpose of zoning is in general two-fold:
to preserve the existing character of an area by
excluding prejudicial uses, and to provide for the
development of the several areas in a manner
consistent with the uses for which they are suited.
The regulations should be related to the character of
the district which they affect; and should be designed
to serve the welfare of those who own and occupy land
in those districts. [Citations omitted.] Allman,
supra, at 444.
The Proposed Rezoning for commercial uses is the most
consistent and reasonable use for this Property. It will
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~-`
serve the economic welfare of RDF and the overall welfare
of the community. It is clear that the denial of the
Proposed Rezoning is not reasonably related to the public
health, safety and welfare and is arbitrary and capricious,
and must be overturned.
In conclusion, you have asked us to outline our
thoughts as to what the options of RDF would be at this
point. In the event RDF's request is not granted, it would
be entitled to seek immediate judicial relief with an
injunction requiring the County Board to approve its
application. Until recently, RDF may not have received
anything more. However, the First English and Nollan cases
evidence the new position of courts to protect both the
property rights and monetary expectations of landowners.
While the method for measuring damages is still somewhat
undecided, the right of landowners to receive monetary
damages for the temporary taking of their property without
just compensation has been affirmed. In this case, one
possible measure of damages would be the difference in the
market value rate of return of the Property under the
Current Zoning and the Proposed Rezoning during the time
such request has been denied. Obviously this would be a
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.-
time consuming process for all involved, but with the
property in its current status, you are left with no
alternatives. We would be happy to discuss our thoughts
with anyone interested in doing so, at which time we can
expound upon this memorandum.
BROWDER, RUSSELL, MORRIS & BUTCHER
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