Downzoning Is Permitted under Virginia Law - Part I
The law in Virginia is what our Supreme Court says it is; it's not what Gerry Connolly says in his regular attempts to tread the thin line between keeping his two groups of constituents -- developers and ordinary citizens -- happy. The former want more and more density, and the latter want protection against development that drives the quality of life down and taxes up!
I've heard Gerry Connolly (and other elected officials, for that matter) claim that the Dillon Rule ties his hands. He has no authority but to approve zoning requests. Not so, Chairman Connolly, not so. The Virginia Supreme Court says that, with appropriate findings, county supervisors have the legal authority to downzone, even in this Dillon Rule state.
The leading case is Board of Supervisors of Fairfax County v. Snell Construction Corp., 214 Va. 655, 202 S.E.2d 889 (1974). That case involved an attempt by our supervisors to downzone an individual parcel of land from what was permitted in the Comprehensive Plan for Annandale. In this instance, the court rejected the downzoning because "since enactment of the prior ordinance there has been no change in circumstances substantially affecting the public health, safety, or welfare, the burden of going forward with evidence of such mistake, fraud, or changed circumstances shifts to the governing body. If the governing body produces evidence sufficient to make reasonableness fairly debatable, the ordinance must be sustained. If not, the ordinance is unreasonable and void." Fairfax County failed to make this showing, such that the court determined the Board's actions unlawful.
However, our Supreme Court made it clear that: the revision of a Comprehensive Plan for a specific area of a county CAN include DOWNZONING; and, with the proper showing, even an individual parcel CAN be DOWNZONED. The Dillon Rule is not a barrier.
The case states that downzoning, as a part of a revision of a Comprehensive Plan, “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.”
Moreover, had Fairfax County demonstrated that, since the Comprehensive Plan for Annandale was adopted by the supervisors, there had been a "change in circumstances [that] substantially affecting the public health, safety, or welfare," even a single parcel of land could lawfully be downzoned.
The following paragraph from the Snell case summarizes the law: "Under the private enterprise system, land use is influenced by the profit motive. Profit flows from investments of time, talent, and capital. Landowners venture investments only when the prospects of profit are reasonable. Prospects are reasonable only when permissible land use is reasonably predictable. The Virginia landowner always confronts the possibility that permissible land use may be changed by a comprehensive zoning ordinance reducing profit prospects; yet, the Virginia statutes assure him that such a change will not be made suddenly, arbitrarily, or capriciously but only after a period of investigation and community planning."
Thus, it is very clear that the Dillon Rule does not tie Chairman Connolly's hands on land use matters as he suggests. His attempt to reward campaign contributors, while appeasing the rest of us, is dishonest and cynical.
I've heard Gerry Connolly (and other elected officials, for that matter) claim that the Dillon Rule ties his hands. He has no authority but to approve zoning requests. Not so, Chairman Connolly, not so. The Virginia Supreme Court says that, with appropriate findings, county supervisors have the legal authority to downzone, even in this Dillon Rule state.
The leading case is Board of Supervisors of Fairfax County v. Snell Construction Corp., 214 Va. 655, 202 S.E.2d 889 (1974). That case involved an attempt by our supervisors to downzone an individual parcel of land from what was permitted in the Comprehensive Plan for Annandale. In this instance, the court rejected the downzoning because "since enactment of the prior ordinance there has been no change in circumstances substantially affecting the public health, safety, or welfare, the burden of going forward with evidence of such mistake, fraud, or changed circumstances shifts to the governing body. If the governing body produces evidence sufficient to make reasonableness fairly debatable, the ordinance must be sustained. If not, the ordinance is unreasonable and void." Fairfax County failed to make this showing, such that the court determined the Board's actions unlawful.
However, our Supreme Court made it clear that: the revision of a Comprehensive Plan for a specific area of a county CAN include DOWNZONING; and, with the proper showing, even an individual parcel CAN be DOWNZONED. The Dillon Rule is not a barrier.
The case states that downzoning, as a part of a revision of a Comprehensive Plan, “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.”
Moreover, had Fairfax County demonstrated that, since the Comprehensive Plan for Annandale was adopted by the supervisors, there had been a "change in circumstances [that] substantially affecting the public health, safety, or welfare," even a single parcel of land could lawfully be downzoned.
The following paragraph from the Snell case summarizes the law: "Under the private enterprise system, land use is influenced by the profit motive. Profit flows from investments of time, talent, and capital. Landowners venture investments only when the prospects of profit are reasonable. Prospects are reasonable only when permissible land use is reasonably predictable. The Virginia landowner always confronts the possibility that permissible land use may be changed by a comprehensive zoning ordinance reducing profit prospects; yet, the Virginia statutes assure him that such a change will not be made suddenly, arbitrarily, or capriciously but only after a period of investigation and community planning."
Thus, it is very clear that the Dillon Rule does not tie Chairman Connolly's hands on land use matters as he suggests. His attempt to reward campaign contributors, while appeasing the rest of us, is dishonest and cynical.
posted by Toomanytaxes at 7:06 AM
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