by Kara Clark
Jan. 24, 2012
What began as an application to build a long sought after bigger space for a budding Leesburg church has turned into a state Supreme Court case that some say could send ripples through land development throughout the state.
The Town of Leesburg again finds itself in the midst of a landmark case, but this time it is not its utility rates that are in contention, but its approval of a rezoning for Cornerstone Chapel.
The Town Council approved a rezoning application for the church expansion in May 2010. In the application, the church sought to rezone 30 acres of land near the intersection of Sycolin Road and Battlefield Parkway from PEC (Planned Employment Center) to B3 (Business), a zone in which churches are a permitted use, as well as a special exception to allow a child care center use on the site. Also requested, and granted, was approval of a Town Plan amendment to remove the alignment in the plan’s Roadwork Network Policy Map that shows a future extension of Tolbert Lane bisecting the property. In total, the application called for a 199,415-square-foot complex, which included the 2,150-seat church, classroom and auditorium space, a café, cabins, a 120-child capacity child care center and 959 parking spaces. The $32 million project was to be constructed in two phases.
Although the council unanimously, and enthusiastically, endorsed the application, the first sign of trouble came at that same council meeting when the project was approved. Patrick Taves, an attorney from Chantilly representing nearby landowner Long Lane Associates, said that his client objected to the applicant’s desire to amend the proffers from the original rezoning in 1988. He noted that this could not be accomplished unless the owners of all property subject to the original rezoning, which at the time included Long Lane, Cornerstone Chapel and the American Red Cross, agreed. Taves also said his client objected to the Town Plan amendment requested by Cornerstone that would remove the proposed future alignment of Tolbert Lane. He said that Long Lane had built its required section of Tolbert Lane years ago with the understanding that the full road would eventually be completed. He asked the council to deny the application or delay a decision on it to give the landowners more time to talk; otherwise he left the door open for future litigation.
And the latter was exactly what happened. Long Lane filed a lawsuit in Loudoun County Circuit Court and, last May, Judge J. Howe Brown found in the property owner’s favor, declaring the church rezoning null and void. In his ruling, Brown said the approved rezoning “violated [the] Plaintiff’s vested rights” set forth in the original 1988 rezoning application.
Brown explained how he arrived at his ruling and is quoted from a court transcript.
“So the question is does the fact that the property has been subdivided give the town the right to alter the proffers in one divided parcel without the permission of the other. Section 2302(a) [of the town Zoning Ordinance] says, quote, once proffered and accepted as part of an amendment to the zoning ordinance, such conditions shall remain in effect until a subsequent amendment changes the zoning on the property covered by such conditions. The question, what is the property covered by such conditions; it must be the entire 38 acres. It wouldn’t make any sense to say it just means one little piece of it. So it means the whole thing. And the town itself, subdividing the 38 acres cannot eliminate the proffers. Because the town itself interprets, when it required all three owners to pay for the traffic light. And the town says well, the proffers still apply to Long Lane, but we just changed it for these other folks over here.”
The judge goes on to note that Long Lane relied on the original 1988 proffers, constructing its building and nearby transportation improvements as required.
“He relied on the proffers and he built it,” Brown said. “Now Long Lane is deprived of the use of Tolbert Lane through the Battlefield [Parkway], and is part of a
development with a completely different use than that which was specified in the 1988 proffers. The action of the town in eliminating Tolbert Lane and rezoning the church property with proffers, relieving the church property from the 1988 proffers, was illegal, void and of no effect. The church has no right to develop its property in accordance with that rezoning.”
The town quickly filed an appeal of the case and this month the Supreme Court of Virginia agreed to hear the case later this year. Rob Showers, of Simms Showers Law in Leesburg, is representing Cornerstone Chapel in the matter.
“What we’re [the town] defending is the council’s ability to make legislative decisions,” Town Attorney Jeanette Irby explained. “They [Cornerstone] are defending the rezoning.”
Irby said the Circuit Court’s decision has far-reaching impacts on land development throughout the state.
“If [an application is] a proffered rezoning, which almost all of the land in town now has some kind of proffer on it, if we didn’t win the [Supreme Court] case all of those owners who were part of the proffer would have to sign on the application. We have a lot of residential subdivisions, so all of the homeowners would have to sign an application if there was a change, a rezoning on the property. That’s not going to happen.”
The court challenge does not have an affect on any approved applications working their way through the town site plan process or construction now, Irby said. But, the town Planning and Zoning Department is running into some difficulties with respect to active applications.
“The issue we’re running into right now is that some applications are potentially on hold because they’re unable to get all the original property owners under the initial proffer to sign off on an application,” she said.
The issue, she notes, has statewide implications.
“Much of the land in Northern Virginia is subject to proffered rezonings. Localities are trying to come up with a solution to allow redevelopment to go forward whether increasing or decreasing density or changes in use,” she said. “If they are subject to the original proffer it becomes concerning because they may not be able to get all the applicants to sign.”
Both the town and county have taken notice of the potential far-reaching effect and included a measure on conditional zoning in their respective legislative agendas. The town legislative agenda approved by the council requests legislation that grants localities the authority to approve or amend conditional zoning involving parcels that have been subdivided from a master parcel that was subject to conditional zoning without having to obtain the concurrence of the owners of all parcels that were subdivided from the original master parcel.
Del. Randy Minchew (R-10) is the chief House patron of a bill that addresses what he characterizes as “a latent defect in our conditional zoning statutes that has been around well into the last 15 years or so.”
HB903 “provides that a landowner subject to certain proffered conditions may apply to the governing body for amendments to or variations of such proffered conditions, provided only that written notice of such application be provided in the manner prescribed by subsection H of § 15.2-2204 to all landowners subject to such existing proffered conditions. Also, no landowner shall possess any vested or other property right in any such proffered condition.” The bill has been referred to the House Committee on Counties, Cities and Towns, and Minchew said this week Senators Mark R. Herring (D-33) and Dick Black (R-13) have agreed to carry the bill through the Senate. The Virginia Muncipal League, Virginia Association of Counties, the Homebuilders Association of Virginia and the National Association for Industrial and Office Parks have all shown their support for its passage.
Minchew said the Long Lane case focused the spotlight on an issue lingering for years.
“It’s one of those latent defects every county attorney I’ve ever worked with said the statute is not clear on this, so they apply the rule of reason and equitable conduct,” Minchew, a long-time Leesburg land use attorney, said.
Minchew recalled many cases over the years in both Loudoun and Fairfax counties where the issue has arisen, but the problem has generally been resolved with “good, old-fashioned, honest communication” and notice and responsiveness to nearby landowners. Many times, the issue comes up in rezoning of planned development district parcels. He points to Fair Lakes in Fairfax, Lansdowne, Ashburn Center and University Center as developments that have encountered this issue.
“This [bill] recognizes the reality of the situation,” Minchew said. “We sometimes do need to do late fourth quarter corrections on planned urban developments to fulfill the Comprehensive Plan to allow good zoning practices to be used.”
Minchew emphasized that he is putting forward the bill “for the good of conditional zoning in Virginia,” but added that he also would be pleased if it winds up helping Cornerstone Chapel’s building plans.
“Obviously, I couldn’t be more pleased if the legislation I file winds up helping a great church succeed in their mission,” he said. “A lot of the people who worship in the church are my constituents.”
The church’s plans are essentially on hold until the court case is resolved, as the Circuit Court decision struck down the approved rezoning. Showers, legal counsel for Cornerstone, said both they and the town have similar arguments.
“Vesting only applies to your own property not to somebody else’s property;
you can’t force somebody else to do something on their property and not pay for it and you can’t make the town put in a road that’s not needed,” he explained. “Once they are redeveloped you can’t make all of the people have to consent to changing what they’re going to build on their property. Obviously people going to end up blackmailing you.”
Gif Hampshire, of Fairfax and Manassas-based Blankingship and Keith, is the attorney representing Long Lane. This week, he cited two objections his client has the town’s approved rezoning: eliminating the proffered zoning requirement that a public road be built through the development from Sycolin to Battlefield and placing an incompatible use-a church-next to a commercial development.
“The public road was very, very important and so was the nature of that development,” he said. “You want similar uses next to each other.”
Hampshire explained that although the 38-acre property had been subdivided it did not eliminate “proffers that went to the betterment of the entire development.”
Hampshire also disagreed that the court case has statewide, far-reaching implications.
“To my knowledge it’s common practice throughout the state to get the consent of all people who are successors in the interest of the original development,” he said.
He went on to use the example of a development with 700 “owners,” likely homeowners in a residential development.
“If you’re virtually built out so you have 700 owners it would be impossible to get the consent of 700 owners, but if a development is built out such that there are 700 owners all proffered improvements in 99.9 percent of the cases are completed otherwise you would not have 700 owners,” Hampshire said. “What talking about here [in the court case] are three owners.”
As the case winds its way towards a date at the Supreme Court, and a bill makes its way through the General Assembly, the impacts on land development are yet to be fully determined. But what is certain is that towns and counties and property owners across the state, not to mention a certain Leesburg church, will be paying close attention.