Arogas v. Frederick Bd. of Zoning Appeals

Present: All the Justices

AROGAS, INC., ET AL.

v. Record No. 091502 OPINION BY

CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR.

FREDERICK COUNTY BOARD OF September 16, 2010

ZONING APPEALS, ET AL.

FROM THE CIRCUIT COURT OF FREDERICK COUNTY

John R. Prosser, Judge

I.

In this appeal we consider whether petitioners, who

challenge the validity of a proffer that a board of supervisors

amended and approved after a public hearing, have stated a

cause of action against a board of supervisors. We also

consider whether the circuit court erred by remanding the

proceeding to the zoning administrator and requiring him to

accept the site plan application for review.

II.

Petitioners Arogas, Inc., (Arogas) and T. P. Manning filed

their amended “petition for writ of certiorari and declaratory

judgment” against the Frederick County Board of Zoning Appeals

and Frederick County Board of Supervisors (collectively the

County). Petitioners alleged that the Board of Supervisors

violated § 165-13(A) of the Frederick County Code because the

Board amended a proffer after the initial public hearing and

approved the amended proffer without holding a subsequent

public hearing. Frederick County Code § 165-13(A) requires,

among other things, that a final proffer should be received in

writing, signed by the owner or applicant, five days prior to

an advertised public hearing. The County filed a demurrer to

the amended petition for declaratory judgment and asserted,

among other things, that the petitioners failed to state a

cause of action to declare “void ab initio” the subject zoning

proffer. The circuit court entered a judgment in favor of the

County, and the petitioners appeal. 1

III.

A.

Initially, we note that we will not consider the

petitioners’ original petition because the petitioners failed

to incorporate or refer to their initial petition in the

amended petition. We have held that “ ‘when a circuit court

sustains a demurrer to an amended [petition] which does not

incorporate or refer to any of the allegations that were set

forth in a prior [petition], we will consider only the

allegations contained in the amended pleading to which the

demurrer was sustained.’ ” Hubbard v. Dresser, Inc., 271 Va.

1

This Court will not consider the petitioners’ argument

that Frederick County should have filed a plea in bar instead

of a demurrer because Arogas raises this argument for the first

time on appeal. Rule 5:25; Appalachian Voices v. State Corp.

Comm’n, 277 Va. 509, 515, 675 S.E.2d 458, 460 (2009); Martin v.

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117, 119-20, 624 S.E.2d 1, 2 (2006) (quoting Yuzefovsky v. St.

John’s Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136

(2001)); Dodge v. Randolph-Macon Woman’s College, 276 Va. 10,

14, 661 S.E.2d 805, 807 (2008).

We also observe that a demurrer admits the truth of all

properly pleaded material facts. “ ‘All reasonable factual

inferences fairly and justly drawn from the facts alleged must

be considered in aid of the pleading. However, a demurrer does

not admit the correctness of the pleader’s conclusions of

law.’ ” Dodge v. Randolph-Macon Woman’s College, 276 Va. 1, 5,

661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69,

71, 372 S.E.2d 373, 374 (1988)); accord Tronfeld v. Nationwide

Mut. Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 449 (2006);

Fuste v. Riverside Healthcare Ass’n, 265 Va. 127, 131-32, 575

S.E.2d 858, 861 (2003).

B.

The petitioners alleged the following facts in their

amended petition that we must consider as true for purposes of

this appeal. On April 27, 2004, the Frederick County Board of

Supervisors held a public hearing regarding a rezoning

application. Prior to the hearing, applicants George M. and

Carol T. Sempeles submitted a written proffer prohibiting the

Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368 (2005) (“arguments

made for the first time on appeal will not be considered”).

3

wholesale or retail sale of diesel fuel on a certain 3.4-acre

portion of land that the Sempeles owned, which was part of a

larger parcel. After a public hearing, the Board limited the

scope of the proffer to prohibit only “[a]ny use involving the

retail or wholesale sale of diesel fuel for over the road truck

carriers.” Some Board members expressed concern with allowing

“truck stops,” which are a permitted use in a B2 zone where the

3.4-acre parcel is located. The Board members also discussed

the fact that they did not want to prohibit all diesel sales;

at which point the original proffer was amended verbally as

stated above. The amended proffer was signed by the landowners

on May 3, 2004, after the Board had voted unanimously to

approve the rezoning.

In April 2006, Triad Engineering, Inc. (Triad Engineering)

submitted a proposed site plan on behalf of Manning and Arogas,

as the developer, to the Frederick County Planning Department.

The Sempeles were the record owners of the property when the

site plan was submitted, and Arogas received a deed for the

property from the Sempeles in March 2007. The petitioners

desire to develop the approximately 3.4 acres of the real

property with a 5,625 square foot service station and a

convenience market, and this appeal is limited to the use of

the 3.4-acre property. According to the proposed plan, the

service station will include “filling areas” and “pumps” for

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the retail sale of gasoline and diesel fuel. Mark R. Cheran,

the Frederick County Zoning Administrator, informed Triad

Engineering that the County’s planning department would not

process the site plan application because of a “discrepancy

between the proposed use of [the] property and the property’s

current zoning designation and associated proffers.”

The petitioners alleged that the amended proffer is void

ab initio because the Sempeles did not submit the amended

proffer to the Board of Supervisors five days before a public

hearing in violation of § 165-13(A) of the Frederick County

Code. Additionally, the petitioners alleged that contrary to

the zoning administrator’s conclusions, service stations that

sell retail gasoline and diesel fuel are permitted uses in

business general B2 districts, pursuant to Frederick County

Code § 165-82.

The petitioners alleged that the amended proffer “clearly

does not [prohibit] truck stops, nor does [the proffer] prevent

diesel sales to small and large diesel consuming vehicles

including but not limited to cars, pick-up trucks, dump trucks,

step-vans[,] [sport utility vehicles], buses, motor homes,

campers and the like.” Continuing, the petitioners pled that

“an ‘over the road truck carrier’ is not defined in the county

code, nor otherwise capable of definition on its face.”

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IV.

A.

Frederick County Code § 165-13, entitled “Conditional

rezoning,” states in relevant part:

“The applicant for a rezoning may proffer in

writing, before the public hearing by the Board of

Supervisors, conditions to be placed on the approval

of the rezoning.

“A. Procedures. Proffers shall be

presented to the Planning Commission at the

advertised public hearing for the rezoning. The

Planning Commission shall make a recommendation on

the acceptance of the proffers and the rezoning to

the Board of Supervisors following the procedures

described for amendments to this chapter. Final

proffers shall be received in writing, signed by the

owner and applicant, at least five (5) days prior to

the advertised hearing of the Board of Supervisors.”

Additionally, Frederick County Code § 165-11, entitled,

“Board of Supervisors public hearing,” states in relevant part:

“Before approving and adopting any amendment, the

Board shall hold at least one public hearing thereon,

pursuant to public notice as required by § 15.2-2204

of the Code of Virginia, after which the Board may

make appropriate changes or corrections in the

proposed amendment; provided, however, that no

additional land may be zoned to a different

classification than was contained in the public

notice without an additional public hearing after

notice required by § 15.2-2204 of the Code of

Virginia.”

(Emphasis added).

Arogas and Manning argue that the circuit court erred when

it sustained the demurrer on the basis that they failed to

plead a viable cause of action. We disagree.

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As required by § 165-13 of the Frederick County Code, the

Sempeles, who were the owners of the property during the 2004

rezoning, submitted a proffer in writing to the Board of

Supervisors before the Board conducted its public hearing. 2

Among the conditions that the Sempeles included in the written

proffer was a condition that no diesel fuel would be sold on

the rezoned property.

The petitioners do not allege that the Sempeles’ original

proffer was untimely or violated § 165-13(A) of the Frederick

County Code. Rather, the petitioners allege that the Board of

Supervisors voted to amend the original proffer after the

public hearing was closed. The petitioners argue that the

amended proffer was not filed five days prior to an advertised

hearing in violation of § 165-13(A) of the Frederick County

Code. The petitioners imply that § 165-13(A) of the Frederick

County Code requires that the Board of Supervisors hold an

additional public hearing before voting on a proffer that the

Board amends after the initial public hearing. The plain

2

We have stated that:

“Proffers are voluntary commitments made by

landowners in order to facilitate approval of

conditional zoning and rezoning requests by

ameliorating the impact of development of their

property on the local infrastructure and the

character and environment of adjoining land.”

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language of Frederick County Code § 165-13(A), however, does

not mandate that an additional public hearing must be held to

consider a proffer that the Board of Supervisors amends after

the initial public hearing.

A purpose, among others, of the plain language in the

County Code is to enable the Board of Supervisors to obtain

input during the public hearing from the public and affected

property owners regarding written proffers. Frederick County

Code § 165-11 authorizes the Board of Supervisors to “make

appropriate changes or corrections in the proposed amendment”

after the public hearing. We find no language in the Frederick

County Code that prohibits the Board of Supervisors, with the

written consent of the applicant property owners, from amending

the written proffer after discussion and public hearing. The

Board is not required to hold an additional public hearing each

time the Board amends a proffer. Otherwise, the public hearing

process may never come to a conclusion. Accordingly, we hold

that the Board of Supervisors was entitled to amend the

original proffer to limit the prohibition on the sale of diesel

fuel only to over-the-road truck carriers.

Additionally, Code § 15.2-2285(C) states in part:

“Before approving and adopting any zoning ordinance

or amendment thereof, the governing body shall hold

Hale v. Board of Zoning Appeals, 277 Va. 250, 273, 673 S.E.2d

170, 182 (2009).

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at least one public hearing thereon . . . after which

the governing body may make appropriate changes or

corrections in the ordinance or proposed amendment.”

We have consistently and repeatedly stated the principles

of statutory construction that we apply when a statute is clear

and unambiguous:

“ ‘While in the construction of statutes the

constant endeavor of the courts is to ascertain and

give effect to the intention of the legislature, that

intention must be gathered from the words used,

unless a literal construction would involve a

manifest absurdity. [When] the legislature has used

words of a plain and definite import the courts

cannot put upon them a construction which amounts to

holding the legislature did not mean what it has

actually expressed.’ ”

Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172

S.E. 445, 447 (1934)); accord Dodge, 276 Va. at 15, 661 S.E.2d

at 808; Davis v. Tazewell Place Assocs., 254 Va. 257, 260-61,

492 S.E.2d 162, 164 (1997); Abbott v. Willey, 253 Va. 88, 91,

479 S.E.2d 528, 530 (1997). We have also stated that “[i]n

construing a statute, we must apply its plain meaning, and ‘we

are not free to add [to] language, nor to ignore language,

contained in statutes.’ ” BBF, Inc. v. Alstom Power, Inc., 274

Va. 326, 331, 645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp.

v. Keane Federal Systems, Inc., 265 Va. 38, 46, 574 S.E.2d 253,

257 (2003)).

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Code § 15.2-2285(C) authorized the Board to make changes

to the proffers that the Sempeles had submitted. The 2004

rezoning of the property was an amendment to the County’s

zoning ordinance. Code § 15.2-2285(C) enables local

governments to consider comments that citizens or property

owners articulate during public hearings and to exercise

legislative prerogatives to respond to those comments by

amending proposed proffers. There is simply no language in Code

§ 15.2-2285 that prohibits the County from amending the proffer

after the public hearing has occurred. 3 We note that the

Sempeles agreed with the changes to the amended proffer after

the public hearing.

Contrary to the petitioners’ arguments, the present case

is unlike our decision in Gas Mart Corp. v. Board of

Supervisors, 269 Va. 334, 344-48, 611 S.E.2d 340, 345-47

(2005), when we held that a county failed to provide the

statutorily required descriptive summary in the notice of the

proposed amendment. Likewise, our decision in Glazebrook v.

Board of Supervisors, 266 Va. 550, 555-57, 587 S.E.2d 589, 591-

93 (2003), is inapplicable here because in Glazebrook the

3

In 2006, the General Assembly amended Code § 15.2-

2298(A) which states in relevant part that “The governing body

may also accept amended proffers once the public hearing has

begun if the amended proffers do not materially affect the

overall proposal.”

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governing body enacted zoning amendments utilizing a notice

procedure that failed to comply with Code § 15.2-2204(A).

Also, Arogas’ reliance upon City of Alexandria v. Potomac

Greens Assoc., 245 Va. 371, 378, 429 S.E.2d 225, 228-29 (1993),

is misplaced because a city failed to provide two notices as

required by former Code § 15.1-431, and we held that the city’s

failure to comply with the former statute rendered the zoning

ordinance void ab initio. In the present case, the County

complied with Code § 15.2-2285(C) and Frederick County Code

§§ 165-11 and -13(A). Accordingly, we hold that the circuit

court did not err by concluding that Arogas and Manning failed

to plead a cognizable cause of action.

B.

In 2006, Triad Engineering, on behalf of Arogas, submitted

a site plan to the County for the development of the 3.4-acre

parcel. The zoning administrator determined that the site plan

demonstrated a proposed use of the property which included the

sale of diesel fuel for over-the-road truck carriers and that

such sales violated the proffer which was a part of a

conditional zoning of the property. The zoning administrator

refused to accept the site plan for the review process. Arogas

appealed the zoning administrator’s decision to the Board of

Zoning Appeals, which denied the appeal.

11

At the conclusion of an ore tenus hearing, the circuit

court held that the zoning administrator should have accepted

the site plan for review and followed the normal application

process before making a determination regarding the proposed

use.

Arogas and Manning argue that the circuit court erred

because the court did not “interpret the proffer” and that this

Court should interpret the proffer on appeal. We disagree.

Section 165-802.02(A) of the Frederick County Code states

in relevant part:

“Applicants shall submit two copies of the site plan

to the Zoning Administrator for review, along with

applicable fees and completed application materials

required by the Zoning Administrator. Final approval

of the site plan shall be given by the Zoning

Administrator. At least five copies of the site plan

are required to be submitted to the Zoning

Administrator for final approval.”

Pursuant to Frederick County Code § 165-802.02(A), Arogas

properly submitted copies of a site plan to the zoning

administrator for review, but the zoning administrator refused

to review and process the site plan application. Arogas

disagreed with the zoning administrator’s decision and

exercised its statutory rights of appeal. See Code §§ 15.2-

2311, -2314. Pursuant to Code § 15.2-2314, 4 the circuit court

4

Code § 15.2-2314 states in relevant part: “The circuit

court may reverse or affirm, wholly or partly, or may modify

12

ruled that the zoning administrator erred by failing to accept

the site plan application for review and the court reversed the

decision of the Board of Zoning Appeals. The circuit court

correctly rejected Arogas’ request that the court usurp the

role of the zoning administrator by reviewing the site plan

application, and we also decline to do so.

V.

For the above reasons, we will affirm the judgment of the

circuit court.

Affirmed.

the decision [of the board of zoning appeals] brought up for

review.”

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