Appendix — Board of County Supervisors v. United States, 116 S. Ct. 61 (1995) (No. 94-1921)

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

FiLEvW

(+

i) "oS AT O21 MAY 2 2 1995;

Jn Gre OF THE CLERK .

Supreme Court Of Che United States

OCTOBER TERM, 1994

BOARD OF COUNTY SUPERVISORS OF PRINCE

WILLIAM COUNTY, VIRGINIA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Sharon E. Pandak’

County Attorney

Gifford R. Hampshire

Assistant County Attorney

1 County Complex Court

Prince William, VA 22192

(703) 792-6620

Counsel for Petitioner \

“Counsel of Record aN

LAWYERS PRINTING COMPANY 7th & Franklin Bidg Richmond. Virginia 23219 (804) 648-3664

a a ee eye hn eer NE Roeland iS nee nO BNE

TABLE OF CONTENTS

APPENDIX

Page

I. Decision Sought to be Reviewed:

A. Board of County Prince

William County, Virginia

v. United States, United

Stetes Court of Appeals

for the Federal Circuit

Decision & Order, dated

February 21, 1995

(affirming dismissal

Oe WEOEEOE CABIM) ciccccess la

II. Necessary Opinions and Orders:

United States Claims

Court Opinion and Order,

dated August 6, 1991

(denying Plaintiff’s

Motion for

Reconsideration) ......... 39a

United Stated Claims Court

Opinion and Order, dated

June 3, 1991 (granting

Defendant’s Motion to

Rb. fab ota oe oe ee eee 47a

es

III. Statutory and Code Revisions -

Involved

Title 16, United States

Code Section 429b(b) ..... 88a

IV. Other Appended Materials

Virginia Code Section

15.1-491(a), (al), (a2),

(Q3) «6 « & 6 ees ‘

Virginia Code Section

A5.3°476 2. sc pt ee le wl we ¢ 2

Prince William County Code

Section 32-7060.20 « . ««-« « Aida

Hazel Rezoning

Proffers numbered: 3

("Trails"); 6 ("Recreation");

9 ("On-site Roadway

Improvements"); ("Off-Site

Roadway Improvements); 14

("Route 234 Bypass/I66

Interchange"); and 20

("Public Land

DeGSGaesae"s « « 4+ « 0 2 ee se eee

United States Claims Court

Order dated December 18, 1990

(Record 610-89L) (Ordering

that Perch Associates Limited

Partnership recover $67,630

plus $13,254,995 in

Interest) + ¢ @ s « « «es > 6 eee

la

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

93-5099

BOARD OF COUNTY SUPERVISORS OF

PRINCE WILLIAM COUNTY, VIRGINIA,

Plaintiff-Appellant,

V.

THE UNITED STATES,

Defendant-Appellee.

JUDGMENT

ON APPEAL from the UNITED STATES COURT OF

FEDERAL CLAIMS IN CASE NO(S). 90-364L

This CAUSE having been heard and

considered it is

ORDERED and ADJUDGED: AFFIRMED-IN-PART,

REVERSED-IN-PART, and REMANDED

ENTERED BY ORDER

OF THE COURT

/s/ Francis X. Gindhart

Francis X. Gindhart, Clerk

DATED Feb 21 1995

ISSUED AS A MANDATE: April 14, 1995

2a

UNITED STATES COURT OF APPEALS °

FOR THE FEDERAL CIRCUIT

93-5099

BOARD OF COUNTY SUPERVISORS OF

PRINCE WILLIAM COUNTY, VIRGINIA,

Plaintiff-Appellant,

V e

THE UNITED STATES,

Defendant-Appellee.

DECIDED: February 21, 1995

Before PLAGER, Circuit Judge, COWEN,

Senior Circuit Judge,and SCHALL, Circuit

Judge.

PLAGER, Circuit Judge.

This is a takings case, involving

the question of what is a compensable

property interest within the meaning of

3a

the Fifth Amendment to the Constitution.’

The United States by legislative mandate

took some 550 acres of land in Prince

William County, for which just

compensation was due. The Board of

County Supervisors of Prince William

County, Virginia, (the "County Board" or

"Board," sometimes "the County") sued for

its share of the compensation awards,

based on what it claimed were property

interests owned by the County. The Court

of Federal Claims concluded that,

whatever interests the County may have

had in the land, they were not such as to

entitle it to compensation for the

1 The takings clause of the Fifth

Amendment states: "(Nlor shall private

property be taken for public use, without

just compensation." U.S. Const. amend. V,

e2.5.

4a

taking.” The Board appeals that judgment .-

to this court. We affirm-in-part,

reverse-in-part, and remand with

instructions for further proceedings.

BACKGROUND

In November 1988 Congress resolved a

feud between a citizens coalition and a

real estate developer regarding the

future of some 550 acres of land, known

as the William Center tract,’ adjacent to

the Manassas Battlefield Park, a historic

* Board of County Supervisors v.

United States, 27 Fed. Cl. 339 (1992);

Board of County Supervisors v. United

States, 23 Cl. Ct. 205 (1991).

* The County in its brief refers to

the 550 acres as the Manassas tract,

"including" the Williams Center tract.

Both the United States and the trial

court refer to the 550 acre tract as

being the Williams Center tract. For

purposes of this opinion, we will treat

the 550 acres as coterminous with the

William Center tract.

5a

Civil War site in Virginia. The owner of

the tract, hereinafter "the developer,"

was in the process of constructing a

large development on the land.‘ The

development was planned to include up to

650 residential units and an initially

authorized 2,910,000 square feet of

nonresidential space. Two years earlier,

pursuant to the County’s statutory zoning

and planning authority, the development

had been approved and the necessary

rezoning enacted by the County Board.

As part of the approval and rezoning

process the developer gave to the Board a

document entitled "Proffer," subsequently

approved by the County’s Office of

, The owner of the tract was

actually a number of legal entities

engaged in its development. For

convenience we shall call them,

collectively, the developer.

6a

Planning as_ the "Proffer/Development -

Plan." This document described the

details of the proposed development, and

set out a series of steps that the

developer agreed to take as part of the

development. These included: providing

open space and buffers, particularly

along adjacent roads, and preserving tree

coverage; working with the National Park

Service and nearby affected residents in

evaluating appropriate screening

measures; creating a property owners

association; providing stormwater drains;

providing a community trail system with

natural or all-weather surface; providing

a community swimming pool/center, two

tennis courts and two multi-purpose

courts, and a ballfield, all "in

fulfillment of County recreation

requirements;" and undertaking various

Ja

on- and off-site roadway improvements, or

compensating the county for their

construction. There was also a

commitment to contribute a sum of money

to the County for public school purposes,

and to provide five acres for a fire

station and a commuter parking lot or

other public facility.

In addition to executing the

"Proffer" document, the developer, as

part of the rezoning approval process,

conveyed to the County five parcels of

land, aggregating 16.05 acres. The

County needed these parcels for street

improvements and _ related activities

necessitated by the development.

The citizens coalition, having

failed to convince the County Board of

the undesirability of permitting such

development adjacent to the national

8a

park, took its case to Congress. .

Congress agreed with the citizens group,

and enacted the Manassas National

Battlefield Park Amendments of 1988 (the

"Act"), Title X of the Technical and

Miscellaneous Revenue Act of 1988, Pub.

L. No. 100-647, 102 Stat. 3342, 3810

(1988), codified at 16 U.S.C. § 429b(b)

(1988). That Act vested in the United

States, as an addition to the Manassas

Battlefield National Park, all right,

title, and interest in and to, and the

right to immediate possession of, the 550

acre William Center tract. The Act

further obligated the United States to

"Day just compensation to the owners of

any property taken pursuant to this [Act]

and the full faith and credit of the

United States is hereby pledged to the

payment of any judgment entered against

eh PO it MEO AIG Hcl

9a

the United States with respect to the

taking of such property." 16 U.S.C.

§429b(b) (2) (B)-

Separate suits were filed by the

developer and the County in the Court of

Federal Claims seeking the compensation

claimed to be due then. The United

States paid the developer a substantial

sum of money for the land and the

construction that had already occurred.

However, the United States declined to

pay the County anything for either the

value of its 16.05 acres or for the value

of the proffers.

During the course of the litigation

with the County, the United States moved

for dismissal of that part of the suit

involving the proffers. The court

granted the motion, holding that the

proffers accepted by the County were not

10a

"property" for purposes of the takings -

clause of the Fifth Amendment. Board of

County Supervisors v. United States, 23

Ci. Gt. 203 (i992). Subsequently, the

court ruled that the County was not

entitled to compensation for the 16.05

acres which the developer had previously

transferred to the County. Board of

County Supervisors v. United States, 27

Fed. Cl. 339 (1992). The County Board

appeals both rulings to this court.

“Sin DISCUSSION

As did the trial court, we will

consider the case as involving two

separate claims, one for the value of the

"proffers," and the other for the value

of the 16.05 acres, title to which was in

the County. At the outset, we point out

that there is no question about the

liability of the United States for the

lla

property it took under the 1988 Act; as

noted earlier, the Act (not to mention

the Fifth Amendment) obligated the United

States to pay for any property interests

taken by the United States as 4a

consequence of the legislative

declaration. The question for us is

whether, among the compensable property

interests taken by the United States,

were there any owned by the County?

I.

Efforts by local governments to

control land development blossomed in the

1920’s when the idea of land use zoning,

blessed by the federal government,”

spread rapidly across the country. Not

long after, regulation of large scale

’ See Standard State Zoning

Enabling Act, a 1922 publication of the

Department of Commerce.

12a

residential (and later, nonresidential) -

developments through planning and

subdivision control ordinances followed.

However euphemistically described, it has

now become common practice for local

government units with zoning and planning

authority to exact from developers

various concessions as a condition to

granting the necessary zoning changes and

planning code approvals for proposed

developments. These exactions range from

requiring the developer initially to

install at the developer’s own cost the

roads and sewers needed to serve the

development, to dedicating land for

public recreation facilities and other

public needs, to making cash payments to

local schools as recompense for the

additional students generated by the

development.

Pee intinn abd PA Ay CON el

13a

When first this practice surfaced,

it was attacked on several grounds. It

was argued that, since the local unit

negotiates jndividual terms with each

developer, this practice amounted to

zoning by contract which was

unconstitutional because government may

not contract away the police power. See

generally, Robert R. Wright and Morton

Gitelman, Land Use 801-12 (4th ed. 1991).

Accord, Mumpower v.- Housing Authority of

Bristol, 176 Va. 426, 452-55, 11 S.E.2d

7132, 742-44 (1940). Another ground for

objection was that, in the absence of

specific enabling legislation, 4% é0

ultra vires for local government to

impose conditions on land use that are

not part of the standard provisions

contained in the local government’s

zoning and planning ordinances. See,

l4a

e.g., Hylton v. Prince William County, .

220 Va. 435, 258 S.E.2d 577 (1979); cf.

Board of County Supervisors of Prince

William County v. Sie-Gray Developers,

Inc., 230 Va. 24, 334 S.E.2d 542 (1985)

(developer may obligate itself to perform

conditions which local authority was not

empowered to require).

Over time, state legislatures

addressed the question of whether local

governments could impose these

development exactions. In Virginia, a

statute now authorizes certain counties

(of which Prince William is one) to

impose, in addition to the requirements

provided for the zoning district by the

ordinance, "reasonable conditions" for a

grant of rezoning based on a landowner’s

proffers made in conjunction with a

request for rezoning. Va. Code Ann.

15a

§ 15.1-491 (a) (Michie 1994). "Once

proffered and accepted as part of an

amendment to the zoning ordinance, such

conditions shall continue in effect until

a subsequent amendment changes the zoning

on the property covered by such

conditions." Id.

In this case, the validity of the

development exactions is not before us,

but the nature of such exactions is. The

County argued that the accepted proffers

gave the County contract rights against

the developer, and that contract rights

are "property" under the Fifth Amendment.

The County is correct that contract

rights are property, but the trial court

was correct in rejecting the County’s

argument here. The fact that, in some

cases, the process by which proffers

become incorporated into the zoning

16a

system may involve a degree of.

negotiation does not convert an exercise

of the police power into an exercise in

contract.°* It is basic law that when

local governments engage in land use

planning and control, they do so by

exercising the sovereign’s police power

delegated to them by the state, typically

through general enabling legislation.’

* The focus of this opinion is on

the interests acquired by the County. We

do not address the question of the nature

of the interests acquired by the

developer, which is a separate matter.

7

"A general State enabling act is

always advisable, and while the power to

zone may, in some States, be derived from

home rule, still it is seldom that

the home-rule powers will cover all the

necessary provisions for successful

zoning." Standard State Zoning Enabling

Act, explanatory note 1 (1922). All

states today have adopted enabling acts

that delegate zoning authority to local

governments.

=a

17a

As noted, the Virginia legislature

expressly authorized counties such as

Prince William to engage in the process

of conditional zoning; that is what the

County did here in the exercise of its

delegated police power to control land

use through zoning. There is no need, or

justification, to overlay this exercise

with a contract veneer. The County was

not engaged in the business of

contracting when it dealt with this

developer, and the United States did not

take from it any rights based on

contract.

The County further argues that, even

if not based on contract but on operation

of law, the County had valuable rights.

Summarized, the argument runs like this:

The proffers are in the nature of a

security interest, not unlike that of a

18a

materialman lien. The interests created-

in the County vested when the rezoning

was granted, and constitute a valid

dedication of the property. Since the

County neither reversed the rezoning of

the property nor abandoned its rights

prior to the taking, the County, it is

claimed, is entitled to compensation for

these interests.

The County’s argument is circular.

The point is not that the County had the

ability to legally enforce the zoning,

just as a materialman may enforce a lien,

or that the County’s enforcement right

was established when the rezoning took

place, or that the County avoided doing

anything to undercut its right prior to

the taking. The point, the question, is

whether the County’s right to enforce the

provisions of the proffer partake of the

.* re wihihnsen wisi sia

19a

nature of those interests called

"property" for which compensation is due.

At the metaphysical level, the

motion of property can be said to

encompass virtually any relationship

among persons’ with regard to the

"things" of the external world. And

indeed, as every first year law student

learns, property rights have been

accorded with regard to a variety of

things, ranging from intangibles such as

corporate stock, poems, and the gathering

of news, to wild animals, flowing water,

pieces of outer-space waste, a lost

brooch on a window sill, and dead bodies,

and even to government benefits. See,

generally, Jessie Dukeminier and James E.

8 This includes legal persons, of

which a governmental unit like the County

is one.

20a

Krier, Property 1-190 (3d ed. 1993); John.

E. Cribbet, Corwin W. Johnson, Roger W.

Findley, Ernest E. Smith, Property 1-165,

esp. c. 1 "What is Property" (6th ed.

1990); Sheldon F. Kurtz and Herbert

Hovenkamp, American Property Law 1-44 (2d

ed. 1993). See also, Goldberg v. Kelly,

397 U.S. 254 (1970); Lynch v. United

States, 292 U.S. 571 (1934).

But rights in property are created

by law, and the law has found it

necessary to draw lines. Sometimes the

lines drawn are pragmatic, sometimes

policy based, and sometimes simply a

function of judgment about what is or

should be.* The object of the proffers

, See, e.g., Bruce Ackerman,

Private Property and the Constitution

(4397735 criticizing as "Scientific

Policymaking" the efforts of various

scholars to assess legal rules in terms

of abstract general principles, and

(continued...)

21a

in this case was not to give the County

something of intrinsic value with which

it could go into the market place and

trade, or which it could use and possess

for county purposes.*° The purpose of

the proffers was to commit the developer

to undertake his project with a specified

degree of concern for and responsibility

toward the surrounds and the people who

in future years would live and work

9(...continued)

offering instead the views of the

"Ordinary Observer"; A. Demsetz, Toward a

Theory of Property Rights, 57 Am. Econ.

Rev. 347 (Pap. & Proc. 1967), arguing

that property rights develop to

internalize externalities when the gains

of internalization become larger than the

cost of internalization.

10 Gee Demsetz, supra n.7 at 348:

"Increased internalization, in the main,

results from changes in economic values,

changes which stem from the development

of new technology and the opening of new

markets, changes to which old property

rights are poorly attuned."

22a

there. Buffer zones, preservation of .-

trees, even tennis courts and ball parks,

were not assets for the general benefit

of the county, but were amenities and

facilities that the developer agreed to

include both for his own’ economic

interest and for that of the citizens who

would be directly affected by the

development.

Further, no title to any of these

amenities and facilities passed to the

County. There is nothing in the document

of proffers that suggests these were to

be County property, or that they were to

be available to the County for its

purposes apart from the need to meet the

23a

additional concerns caused by the

developer’s proposal itself.**

The County’s reliance on doctrines

relating to negative easements and the

enforceability of subdivision

restrictions between the private

landowners is misplaced. And the

esoterica regarding whether certain kinds

of privately-held equitable servitudes

run with the land or not is beside the

point. The point is that the proffers,

when incorporated as Virginia law

11 A possible exception appears in

paragraph 20 of the "Proffer," entitled

"Public Land Dedication." This paragraph

deals with five acres to be set aside for

a fire station and other uses. From the

record it does not appear that, if this

parcel was intended to be transferred to

the County, such transfer occurred prior

to the taking. If it did, it would raise

the same issues as those dealt with in

part 2 of this opinion, regarding the

16.05 acres. On remand the trial court,

if asked, can sort this out.

24a

provides into the ordinance granting the .

rezoning, gave the County the power to

enforce the ordinance as enacted. That

power the County could not sell, give

away, or transfer. Such enforcement

rights arise out of and are defined by

the County’s exercise of the police

power.

In Dolan v. City of Tigard, 114

S.Ct. 2309 (1994), the Supreme Court

reversed a state’s judgment of

noncompensability under the Fifth

Amendment when the city exacted from the

property owner, as a condition to the

grant of a requested rezoning, the

dedication to it of a portion of her

property lying within the 100-year

floodplain of adjacent Fanno Creek. The

city not only wanted the property owner

not to build in the floodplain, but it

25a

also wanted the property owner’s land

along Fanno Creek for its greenway

system. As the Court noted, "The city

has never said why a public greenway, as

opposed to a private one, was required in

the interest of flood control." Id. at

2320.

The County in this case avoided

making that particular mistake. It did

not require through’ the "Proffer"

document that the developer transfer to

the County title to or any ownership

interest in the land affected by the

proffers. The County did not "own" any

interests by virtue of the proffers, and

the enforcement rights the County derived

from the proffers were not themselves in

26a

the nature of property.” The trial.

court was correct in dismissing the

County’s claim regarding the proffers.

iI.

The County’s claim for compensation

arising from the taking of the 16.05

acres raises different issues. The

record is clear, and the trial court

expressly held, that the five parcels

that constitute the 16.05 acres were

conveyed, prior to the government taking,

to the County by the developer through

deeds and plat dedications that had the

legal effect of giving the County title

to all five in fee simple. The United

States argues, however, that the purpose

12 We express no view whether, had

the developer not volunteered the

proffers, their imposition by the County

would have constituted a taking of the

developer’s property.

27a

of these transfers was so that the County

could engage in certain road improvements

necessitated by the development. From

this, the United States argues, and the

trial court agreed, there was established

a legally enforceable burden on the

properties transferred. Since the land

burdened with this limitation had no

practical market value, it was impossible

to ascertain what just compensation would

be and thus the United States, it is

argued, was not obligated to pay

compensation for its taking.

The argument is innovative, and the

United States cites cases for support of

the proposition that a taking of

interests for which there is no

ascertainable value cannot be

compensated. The argument, however, is

based on an erroneous premise. It has

\

28a

long been the law of this country that.

restraints on alienation of property are

disfavored. See, e.g., Richard R. Powell

and Patrick J. Rohan, 5B Powell on Real

Property §§ 839-40 (1994): "In general,

it can be safely asserted that under

present law, there is no way in which an

unqualified restraint on alienation

[i.e., one not limited by time, manner,

or alienee] can be effectively imposed on

a legal estate in fee simple." Id. at

77-79. See also VI American Law of

Property §§ 26.1-26.47 (1952); accord

Dart Drug Corp. v. Nicholakos, 221 Va.

989, 277 S.E.2da 155 (1981). The rule

limiting restraints on alienation has

particular application to the estate fee

Simple, an estate considered by the

common law as an estate of general

inheritance and of potentially infinite

29a

duration. Cornelius J. Moynihan,

Introduction to the Law of Real Property

34 (1962).

The common law does make limited

provision for placing conditions upon a

fee simple estate in land when such

conditions are made an express part of

the estate. This assumes’ strict

compliance with the requirements for

creating a ‘qualified’ or ‘defeasible’

fee simple estate. Three such

‘qualified’ estates, in which -° the

instrument of transfer leaves the

transferee with less than a fee simple

absolute, are recognized at common law.”

” The estate in fee tail, now

generally modified or prohibited by

statute, was a qualified fee estate, but

not a fee simple and not technically

subject to defeasance.

30a

The first type is a fee simple.

subject to a special limitation, usually

called a fee simple determinable. When

the language of a conveyance creates a

fee simple determinable, there is left in

the transferor a future interest (that

is, a present interest in future

possession) called a possibility (or

right) of reverter. The other qualified

fee simple estate, the creation of which

involves a divesting interest in the

transferor, is a fee simple subject toa

condition subsequent. This occurs when,

by the language of the conveyance, the

fee simple estate is made subject to a

power in the grantor to terminate the

estate granted on the happening of a

specified event. The interest remaining

in the transferor is denominated a right

of entry or power of termination.

3la

The third type of qualified fee

simple is the fee simple subject to any

executory limitation. This is created

when the fee simple is by its terms

subject to divestment in favor of a

person other than the conveyor upon the

happening of a specified event. The

other person has an executory interest;

this type of defeasible fee ‘simple was

not possible prior to the Statute of Uses

in 1536.** For detail, and some of the

nuances, see Ralph E. Boyer, Herbert

Hovenkamp, and Sheldon F. Kurtz, The Law

of Property 82-89 (4th ed. 1991).

On the record before us, it does not

appear that there was anything in the

4 Regrettably, this case does not

require us to consider application of the

Rule in Shelly’s Case, 1 Co. Rep. 93b

(1581), since the conveyances did not

involve remainders limited to the heirs

of the developers.

32a

deeds or the dedications that expressly -

limited the conveyed interests to road

improvements purposes, or purported to

create any of the interests described

above. It matters not that the parties

contemplated that the property would be

used for a particular purpose. If an

owner of land conveys it in fee simple to

a buyer who, it is understood, will build

a traditional Cape Cod upon it, and

instead the buyer builds a contemporary

manse, can the transferor claim the title

does not permit that choice? Absent an

express condition in the deed, such as

those we have described, or some

enforceable restrictive covenant imposed

33a

by deed or dedication, the choice is the

new owner’s.*°

By like token, the developer here,

absent an express condition in the

instrument of transfer sufficient to

create an enforceable right against the

County, retained no power to reclaim the

land should the County fail of its

purpose. And absent such conditions on

the County’s estate in the land, the

County took in fee simple, as_ the

Virginia statute specifies,** and was

aS We offer no view about the

potential of a suit for damages or

recision for breach of contract. And of

course the question of publicly-imposed

restrictions, such as architectural

restrictions, is a separate question.

” See Va. Code Ann. §15.1-478

(Michie 1994) (the recordation of a plat

with deeds of dedication "shall operate

to transfer, in fee simple, to the

[County] such portion of the .. . plat

set apart for streets... .").

34a

free as a matter of property law to do -

with the property what it wished.’’

When the trial court analyzed what

the County had received in the transfers

from the developer, the court concluded

what the County owned were "the street

rights of way in fee simple." Board of

County Supervisors, 27 Fed. Cl. at 345.

"Rights of way" are another term for

easements, which are possessory rights in

someone else’s fee simple estate. In

other words, a fee simple estate can be

burdened by an easement which entitles

someone other than the owner of the fee

to use the property, for example as a

17 Again, we do not offer any views

on whether the developer might have had a

cause of action against the County for

damages or for recision, based on breach

of contract or some similar theory,

should the project have proceeded and the

County have failed to build the expected

road improvements.

35a

right of way across it. But a fee simple

estate is not an easement, or vice

versa.*® It is not clear exactly what

the trial court meant, then, by the term

"rights of way in fee simple," since that

could refer either to a fee simple estate

or to an easement (right of way), but not

both.

Our examination of the record and of

the applicable Virginia law leads us to

conclude that the trial court was correct

in concluding the estate was one in fee

simple -- what the County got was a fee

simple estate, not an easement for street

use. See Va. Code Ann. § 15.1-478

18 =The right, by way of a granted

easement, of someone to make use of

another’s land held in fee simple should

not be confused with the question of

imposing qualifications or restraints on

the owner’s rights of alienability of the

fee title.

36a

(Michie 1994); n.16 supra. Because the -

trial court thought the fee simple estate

was legally burdened by the avowed

purpose of the transfers, the use of the

phrase "street rights of way in fee

simple" is understandable as 4

description of what the trial court

thought was the legal effect of the

conveyances.

The trial court elsewhere clearly

differentiated between the property

interests involved in the 16.05 acres and

property interests regarding easements

and rights-of-way. The court notes that

the County in its original complaint sued

for both the value of the 16.05 acres and

for the value of road rights-of-way and

easements also alleged to be taken.

Board of County Supervisors, 27 Fed. Cl.

at 340 n.1. The court went on to note

37a

that at the start of trial plaintiff

withdrew its claims for just compensation

for the taking of the easements. Id.

What remained then was the 16.05 acres of

land which, as the trial court held, were

owned by the County in fee simple.

In light of our conclusion regarding

the nature of the interests owned by the

County, the argument of the United States

regarding the difficulties inherent in

determining the value of property

interests for which there is no market is

beside the point. That argument

presupposes that the County’s estates in

the land were not fee simple estates, but

were estates encumbered by street rights

of way, and that such interests can have

no reasonably ascertainable value. As we

have said, that supposition is wrong.

The interests held by the County in these

38a

five parcels, constituting the 16.05.

acres, are no different from the fee

simple estates held by other owners of

property within the William Center tract.

We have considered the other arguments

made by the United States, all of which

build on the same supposition of burdened

estates, and find them equally

unpersuasive.

The judgment of the trial court,

that the 16.05 acres of land taken from

the County by the United States was

without ascertainable value and therefore

noncompensable, is reversed. The cause

is remanded to the trial court for

further proceedings to determine the just

compensation due the County for the

taking of its land which it held in

unencumbered fee simple.

AFFIRMED-IN-PART, REVERSED-IN-PART,

AND REMANDED

39a

IN THE UNITED STATES CLAIMS COURT

No. 90-364L

(Filed: August 6, 1991)

x nenkrenktke<*«reke#e«#etknzkeen“erketkitiktt &

BOARD OF COUNTY SUPERVISORS

OF PRINCE WILLIAM COUNTY,

VIRGINIA,

Plaintiff,

V o

THE UNITED STATES,

Defendant.

2 2.2 = 2a 2 2 22 8 8 Oe 8 ef

Sharon E. Pandak, Prince William

County, Virginia for plaintiff.

Deputy Chief James E. Brookshire,

Washington, De ' with w were John S.

Gregory, Al Brenne and Donald

Rosendorf for defendant.

ORDER

TIDWELL, Judge.

On June 3, 1991, this court issued

an Order partially dismissing plaintiff's

complaint. On June 14, 1991, plaintiff

40a

timely filed a Motion for Reconsideration.

under RUSCC 59. This rule states in

relevant part" "[R]econsideration may be

granted to all or any of the parties and

on all or part of the issues for any of

the reasons established by the rules of

common law or equity applicable as

between private parties in the courts of

the United States." RUSCC 59(a) (1).

Common law and equity have

established a number of reasons that

would justify reconsideration, most of

which are included in RUSCC 60. For

instance, a motion for a new trial,

rehearing, or reconsideration may be

granted on the ground of newly discovered

evidence. E.g., Marshall’s U.S. Auto

Supply v. Cashman, 111 F.2d 140, 142

(10th Cir.), cert. denied, 311 U.S. 667

(1940). However, for newly discovered

4la

evidence to justify a new trial,

rehearing, or reconsideration, the moving

party must. show: 1) that the newly

discovered evidence was discovered since

the disposition of the case; 2) facts

from which the court may infer that the

newly discovered evidence was not

previously discovered due to a lack of

reasonable diligence on the part of the

movant; 3) that the newly discovered

evidence is not merely cumulative or

impeaching; 4) that the newly discovered

evidence is material; and 5) that the

newly discovered evidence is of such a

character that on a new trial, rehearing

or reconsideration, such evidence would

produce a different result. See, @.g.,

Id. In the present action, plaintiff has

filed to present such evidence.

42a

Rule 60 provides further reasons to.

allow relief from judgment. It states

that relief from judgment may be based

on:

(1) mistake, inadvertence,

surprise, or excusable neglect;

(2) newly discovered evidence

which by due diligence could

not have been discovered in

time to move for a new trial

‘ under rule 59(b); (3) fraud 4

(whether heretofore denominated q

intrinsic or extrinsic),

misrepresentation, or other

misconduct of an adverse party;

(4) the judgment is void; (5)

the judgment has been

satisfied, released or

discharged, or a prior judgment

upon which it is based has been

reversed or otherwise vacated,

or it is no longer equitable

that the judgment should have

prospective application; or (6)

any other reason justifying

relief from the operation of

the judgment.

RUSCC 60(b).

Plaintiff’s motion fails to satisfy

any of these criteria for vacating the

court’s prior determinations. Much of

+ 6 Cah TOO te Aas SPREE as Pita

43a

what plaintiff asserted in its motion for

reconsideration merely is a reiteration

of the arguments it made in its response

to defendant’s motion for summary

judgment. As defendant correctly pointed

out "[iJn large measure, Plaintiff’s

Motion for Reconsideration simply assumes

its position that a legislative

expectancy in "proffered" zoning

conditions equates to a distinct property

interest compensable under the Fifth

Amendment." This court specifically

rejected that conclusion. Where the

motion does more than assume plaintiff’s

conclusion, it merely recasts arguments

already briefed and decided to by the

court after careful, thoughtful, and

44a

detailed consideration.’ To that extent, .

+ Plaintiff argued that the court

"failed to address the increase in value

of the subject [Prince] William Center

tract because of the rezoning and

proffers. This enhancement indicates

that the proffers clearly have value."

The court did consider this argument and

included its findings in other sections

of the Order. The court did not address

this argument specifically because it is

so totally devoid of merit. The heart of

that argument, again, assumes the

conclusion that proffers are property

interests, which the court has determined

they are not. Furthermore, plaintiff’s

argument is backwards because the

increased value of the Prince William

Center tract was due not to the proffers,

but to the rezoning, and inured not to

plaintiff, but to the developer.

Plaintiff, apparently, would have this

court view its status as that of a joint

venturer, i.e., it is entitled to "value

based" compensation by virtue of its role

as the legislative agent that enacted the

conditional zoning. That argument

assumes too much, and finds absolutely no

support in any law of which the court is

aware. As the court stated repeatedly in

its June 3, 1991 Order, the zoning

structure that includes proffers

represents legislative authority;

rezoning is a legislative act. The only

expectancy underlying a legislative act

is compliance with the law. The court

amply explained why plaintiff cannot

(continued...)

45a

the court declines plaintiff’s invitation

to re-examine the merits of earlier

arguments.”

A motion under RUSCC 59 must be

based upon manifest error of law, or

mistake of fact, and is not intended to

give an unhappy litigant an additional

chance to sway the court. Scott Aviation

v. United States, 21 Cl. Ct. 782 (1990);

*(...continued)

enforce its zoning regulations against

the federal government. Therefore, this

argument must fail, as should have been

apparent to plaintiff from the lengthy

discussions in the Court’s June 3, 1991

Order.

2 The court also may grant a motion

for new trial, rehearing, or

reconsideration sua sponte, regardless of

whether a moving party has cited the

reason upon which the court grants the

motion. See generally Pate v. Seaboard

R.r., Inc., 819 F.2d 1074, 1084 (11th

Cir. 1987)1. However, in this case, the

court is unable to find any reason,

raised by plaintiff, or otherwise that

would justify reconsideration.

46a

Weaver-Bailey Contractors, Inc. v. United -

States, 20 Cl. Ct. 158 (1990). In light

of RUSCC 59 and 60, relevant case law,

and after fully reviewing this case file

and considering the arguments raised by

plaintiff’s motion, the court is unable

to find circumstances that would mandate

allowing that motion. Accordingly, and

for the reasons set out in detail in

defendant’s opposition to plaintiff’s

RUSCC 59 motion, plaintiff’s Motion for

Reconsideration is denied.

IT IS SO ORDERED.

/s/ Moody Tidwell

MOODY R. TIDWELL

Judge

47a

IN THE UNITED STATES CLAIMS COURT

ORDER-PROFFER CLAIM

No. 90-364L

(Filed: June 3, 1991)

oe @ 4 £8 2.4 4 2 2 Se SS

BOARD OF COUNTY Legislative

SUPERVISORS OF PRINCE Taking; Proffers

WILLIAM COUNTY, Under Virginia

VIRGINIA, Law; Zoning and

Property Rights.

Plaintiff,

Vv.

THE UNITED STATES,

Defendant.

ae we ee a Ss ee ee ee ee Se Oe ee

Sharon E. Pandak, Prince William

County, Virginia for plaintiff.

Deputy Chief James E. Brookshire,

Washington, D.C., with whom were John S.

Gregory, Alan Brenner, and Donald

Rosendorf for defendant.

ORDER

TIDWELL, Judge.

This case is before the court on

defendant’s motion for partial dismissal

48a

pursuant to RUSCC 12(b) (4), for failure.

to state a claim upon which relief can be

granted. For the reasons set forth

below, the court grants defendant’s

motion.

FACTS

In 1986, Hazel-Peterson Companies

(Hazel) acquired approximately 542 acres

of property near Manassas in Prince

William County, Virginia (Prince William

Tract), for approximately $9.8 million.

This property adjoined the Manassas

Battlefield Park and, at the time of the

purchase, was zoned agriculture (A-1).

The park, as is known by every student of

American history, was the site of a major

battle during the Civil War.

Following the acquisition of the

Prince William Tract, Hazel applied to

plaintiff, Board of County Supervisors of A

49a

Prince William County, Virginia

requesting that plaintiff rezone the

property from A-1 to a Planned Mixed Use

District (PMD). PMD permits a mixture of

residential and commercial uses within

the rezoned property. Under state law,

plaintiff is charged with legislative

control of land use in Prince William

County through zoning and other land use

regulations. Through zoning ordinances,

plaintiff establishes various zoning

districts in the County which regulate

the use to which property in each zoned

district can be put. On November 18,

1986, plaintiff granted Hazel’s request.

See Prince William County Rezoning

#86-61, ORD. No. 86-173, Nov. 18, 1986.

As a condition to rezoning, Hazel

voluntarily and unilaterally made certain

proffers - offers of conditions or

50a

undertakings that the County deemed.

sufficiently mitigating of possible

developmental impacts to warrant

conditional rezoning - which would be

included in the zoning ordinance in

addition to the general conditions of the

PMD. Under Virginia law, plaintiff is

authorized to accept voluntary proffers

as part of an amendment to the zoning

ordinance. Va. Code Ann. § 15.1-491(a)

(1982). In fact, there is a school of

thought that believes that the "proffer

system" has developed informally in

county land use regulation and politics

to a point where no substantive

amendments to county zoning can be

achieved in the absence of acceptable

proffers. There is no question but that

Hazel’s proffers were significant, as it

agreed to provide the following:

5la

matural and all weather trails;

a community swimming pool center;

two tennis courts;

two multi-purpose courts;

a multi-purpose ball field;

design and installation of sewer

and water facilities to serve

subject property and Little Bull Run

Watershed to the north;

- a $2 million contribution for a

proposed Route 234 Bypass with

Interstate 66 at the southwestern

edge of the property;

- the widening of various roads

planned to connect with the

development to be dedicated to the

county; and

- five acres of property for a fire

station and a commuter parking lot.

52a

In addition to the proffers, Hazel.

dedicated to plaintiff approximately 13

acres of land in fee and certain

easements.* Plaintiff rezoned’ the

property on November 18, 1986.

Hazel’s original plan called for

development of residential areas, an

office park, and a strip shopping center

of approximately 120,000 sq. ft.

However, less than a year after the

rezoning, Hazel announced plans to build

a regional mall of approximately 1.2

million sq. ft. This, in turn, led to

the formation of a grassroots "Save the

Battlefield" coalition which opposed any

further development around the Manassas

Battlefield site based on the concern

1

These easements and dedications

are not part of defendant’s motion for

partial dismissal.

53a

that a large mall development would

destroy the solemn character of the site.

On November 10, 1988, the United

States Congress, in response to the

coalition movement, enacted the Manassas

National Battlefield Park Amendments of

1988 (Act). See Technical and

Miscellaneous Revenue Act of 1988, Pub.

L. No. 100-647, 102 Stat. 3342, 3810

(codified as the Manassas National

Battlefield Park Act, 16 U.S.C. §429(b)

(1991)). The Act vested in the United

States all right, title, interest, and

immediate possession of certain land,

effecting a legislative taking by eminent

domain of property which included the

Prince William Tract. The Act provided

for payment of just compensation to the

owners of any property interest taken, as

mandated by the fifth amendment.

54a

Between the November 18, 1986.

rezoning, and the November 10, 1988

taking, Hazel performed some development

on the commercial and residential

projects. As of the date of the taking,

construction was limited to various

incomplete sewer and water improvements,

partially completed housing lots, and

partially completed roadways. In total,

Hazel expended approximately $8.5 million

on infrastructure development. Plaintiff

claimed that the proffers constituted

"property" under the takings provision of

the fifth amendment to the Constitution

and, as a result of the taking, it lost

the benefit of Hazel’s proffers,

entitling it to just compensation.

DISCUSSION

Plaintiff claimed that proffers

accepted under a Virginia zoning

55a

ordinance constitute private property for

which defendant must pay compensation.

The court believes this to be a case of

first impression.

A. Proffers Are Not a Property Interest.

The Act expressly provided that the

government would pay "just compensation"

for any "property" taken. Under the

literal terms of the Act, in order for

plaintiff to be entitled to just

compensation, it must show it had a

property interest which the government

took. However, not every destruction or

injury to property by governmental action

is a taking in the constitutional sense.

Omnia Commercial Co. v. United States,

261 U.S. 502, 508-510 (1923). Therefore,

the court must determine what, if any,

compensable property right plaintiff

56a

possessed, and whether the government.

"took" that property.

"Property," as employed in the fifth

amendment takings clause, includes every

interest any individual may have in any

and everything which is the subject of

ownership, together with the right to

possess, use, enjoy, and dispose of the

same. United States v. General Motors

Corp., 323 U.S. 373, 377-78 (1945). The

reference to private property in the

takings clause encompasses condemned

property of state and local governments

because the loss of a public facility may

be "no less acute than the loss in a

taking of private property." United

States v. 50 Acres of Land, 469 U.S. 24,

31 (1984). The court ultimately must

determine what constitutes property by

reference to state law. United States ex

57a

rel. T.V.A. v. Powelson, 319 U.S. 266,

279 (1943); United States v. Causby, 328

U.S. 256, 266 (1946); see also Webb’s

Fabulous Pharmacies Inc. v. Beckwith, 449

U.8...385, 160. (1960). Virginia has

construed broadly those interests which

may be compensable. "In contemporary

jurisprudence, ‘property’ refers to both

the actual physical object and the

various incorporeal ownership rights in

the res, such as the rights to possess,

to enjoy the income from, to alienate, or

to recover ownership from one who has

improperly obtained title to the res."

First Charter Land Corp. v. Fitzgerald,

643 F.2d 1011, 1014-15 (4th Cir. 1981).

Plaintiff claimed that because it

had a "legitimate claim of entitlement to

benefits deriving under Virginia law in

58a

the proffers," those benefits constituted.

private property. However, in order to

find that plaintiff is entitled to

compensation for the proffers, plaintiff

must prove, and the court must accept,

plaintiff’s contention that it received a

property interest in the proffers that

inured to it at the time of the rezoning.

Plaintiff failed to provide a basis

grounded in property law to support this

claim.

Pursuant to Virginia law, plaintiff

accepted the proffers as part of district

rezoning. Va. Code Ann. § 15.1-491(a)

(1982). This section sets forth those

counties that can utilize enabling

authority with respect to proffered

rezoning. The statute provides that, as

a part of an amendment to the zoning map,

a county may adopt:

59a

reasonable conditions, in

addition to the regulations

provided for the zoning

district by the ordinance, when

such conditions shall have been

proffered in writing, in

advance of the public hearing

before the governing body

required by § 15.1-493 by the

owner of the property which is

the subject of the proposed

zoning map amendment. Once

proffered and accepted as part

of an amendment to the zoning

ordinance, such conditions

shall continue in full force

and effect until a subsequent

amendment changes the zoning on

the property covered by such

conditions [.]

Id. Conditional zoning provides zoning

authorities with added flexibility. In

situations where rezoning otherwise would

effect unacceptably drastic change,

conditional rezoning mitigates the

impacts to an acceptable level by adding

certain use limitations, or conditions,

i.e., proffers.

The court does not agree with

plaintiff that these proffers, once

60a

accepted, "conferred on Prince William.

County and its citizenry certain rights

and benefits which constitute private

property." The court, in interpreting a

zoning ordinance, "is controlled by the

principal that words in common use must

be given their plain and natural meaning

in the absence of any showing that such

words were used in any other than their

usual and ordinary sense." McClung v.

County of Henrico County, 200 Va. 870,

875, 108 S.E.2d 513, 516 (1959). Under

the plain meaning of the Virginia

statute, plaintiff’s acceptance of the

proffers resulted in legislative

amendments to the zoning of a specified

parcel of property. See Rinker v. City

of Fairfax, 238 Va. 24, 29, 381 S.E.2d

213, ©2327 = (30807. The state statute

authorizes the local government to accept

6la

proffers in addition to general uniform

regulations within a zoning district. If

accepted, the restrictions become a part

of the zoning regulatory framework for

the property. Proffers become binding

development restrictions on the developer

until subsequent rezoning, or, as a

matter of practicality, until development

is stopped. Here, Congress’ legislative

taking precluded the planned development

of the property. The National Park

Service now manages the property, under

federal title, as a federal park. The

conditional zoning, along with the

impacts that would justify that zoning,

simply ceased to exist as of the date of

the taking; they were not taken.

Admittedly, proffers may do more

than merely mitigate the impacts of a

specific proposed development. The

62a

regulatory power of the county "is not.

limited to regulations designed to

promote public health, public morals or

public safety . . . but extends to so

dealing with conditions which exist as to

bring out of them the greatest welfare of

the people. .. ." West Bros. Brick Co.

v. County of Alexandria, 169 Va. 271,

282, 192 S.E. 881, 885 appeal dismissed,

302 U.S. 658 (1937), reh’g denied, 302

U.S. 781 (1938). Developers may proffer

certain conditions that represent

property interests. However, a proffer,

in and of itself, cannot be a property

interest.

Plaintiff attempted by syllogism to

convince this court that the proffers are

property, arguing as follows:

Plaintiff seeks compensation

only for those proffers it

believes constitute interests

in land. In particular,

Rede ee _—

- PEE et

63a

plaintiff claims compensation,

inter alia, for walking trails,

a swimming pool, tennis courts

and 5 acres of land. The

conditions proffered are

property interests. Therefore,

proffers of those conditions

necessarily must be property

interests.

This argument is disingenuous. Proffers

confer only those legislative

expectancies existing in the zoning

anendaent itself. Zoning ordinances, and

other government regulations controlling

land development, are governmental

restrictions, not the government’s

property. The restrictions governed

Hazel’s proposed development, and were

not given unconditionally. Once the

taking precluded the planned development,

the restrictions no longer were relevant,

and plaintiff’s reasons for requiring the

proffers became a nullity, thereby

dissolving any "rights" plaintiff

64a

eventually might have accrued. The.

language of Hazel’s proffers, cited by

plaintiff, supports this conclusion.

Hazel’s "development of the subject

property [was] subject to the" proffers.

This language fairly supports an

interpretation that, once the development

was cancelled, the proffered conditions

no longer were required.’

Plaintiff alternatively claimed that

its situation is akin to materialmen

liens "taken" by the government.

? Plaintiff argued that Hazel’s

$8.5 million expenditure on

infrastructure development caused Hazel’s

rights under the conditional zoning to

vest, thereby divesting plaintiff of any

unilateral power to rezone. Therefore,

plaintiff argued, its "rights" to the

proffers also had vested. If Hazel’s

rights had, indeed, vested, a finding the

court need not reach here, plaintiff

could have enforced its zoning ordinances

against Hazel. However, as discussed

more fully infra section E, plaintiff

cannot enforce its zoning ordinances

against the United States.

65a

Plaintiff cited to Armstrong v. United

States, 364 U.S. 40 (1960) for the

proposition that the proffers attached by

operation of law, and became a

compensable property interest. In

Armstrong, the Court upheld the right of

materialmen to collect the value of

unrecorded liens on vessels taken by the

government. Liens represent an interest

in the underlying property, and attach

directly to the underlying property.

Perfected liens represent a recognized

property interest. Proffers are not

recognized property interests. In the

case of a materialmen’s lien, the

contractor has provided materials and

performed work on the property. The

property acts as a security interest for

the work performed to assure payment by

the owner. In this case, Hazel performed

66a

work on the Prince William Tract, but the.

Tract was not a security interest for the

proffers. Plaintiff merely performed the

legislative function of rezoning the land

as conditioned by the proffers, but

performed no work creating a lien which

attached to the property through a

security interest.

Therefore, the court finds that

plaintiff did not have a vested property

interest in the proffers. Although the

court thinks this dispositive, it will

address plaintiff’s argument that the

proffers represent, or are sufficiently

analogous to previously recognized

property interests. Specifically,

plaintiff alleges that either:

1) Its acceptance of the

proffers in conjunction with

67a

rezoning constituted a valid

dedication; or

2) Its interest was

sufficiently analogous to a

restrictive covenant to find a

property interest.

The court will address each of these

allegations in turn.

B. Proffers Do Not Constitute a Valid

Dedication.

Plaintiff claimed that once it

granted the rezoning, it was able to

exercise ownership rights over’ the

proffers. In essence, a dedication took

place. The court does not agree. A

dedication is the setting aside of land,

or of an interest therein, to the public

use; or a form of transfer by an owner to

the public of a fee or lesser interest in

land. City of Norfolk v. Meredith, 204

a

4

68a

Va. 485, 489, 132 S.E.2d 431, 434 (1963)...

Under Virginia law, in order to effect a

dedication, the owner must have specific

intent to dedicate an interest manifested

by some unequivocal act. Greenco v. City

of Virginia Beach, 214 Va. 201, 204, 198

S.E.2d 496, 498 (1973). Plaintiff argued

that Hazel’s proffers, and plaintiff’s

subsequent acceptance via the granted

rezoning, represented unequivocal acts.

Accepting this allegation, arguendo, the

court finds that Hazel lacked the

requisite intent needed to dedicate the

proffered interests.

Where Hazel intended to dedicate

property interests to plaintiff, it did

so explicitly through signed deeds of

dedication which were made separately

from the proffers. While recognizing

that the proffers also were signed

69a

documents, the court is not persuaded by

plaintiff’s argument that the proffers,

given pursuant to the zoning laws,

amounted to dedications. By making

proffers, rather than definitively

dedicating the interests, Hazel

recognized that in the event plaintiff

granted its request for rezoning, the

proffers would be mandatory conditions

for developing the property. However,

plaintiff conceded that at the time it

accepted the proffers, it maintained its

ability to rezone the property

unilaterally. See Va. Code Ann.

§ 15.1-491(a). Therefore, Hazel could

not have considered its proffers

"dedications" knowing, as it did, that

plaintiff later could rezone.

The Virginia legislature explicitly

created separate laws for the treatment

70a

of proffers and dedications. Hazel chose.

to dedicate some interests, but to

proffer others. This court will not

second guess the legislature, or Hazel,

and therefore finds that proffers are not

equivalent to dedications.

Cc. Proffers Are Not Sufficiently

Analogous To Restrictive Covenants

To Constitute A Property Interest.

Plaintiff claimed that proffers are

analogous to restrictive covenants and

therefore are compensable because under

Virginia law, restrictive covenants are

compensable property if taken by eminent

domain. Meagher v. Appalachian Elec.

Power Co., 195 Va. 138, 144, 77 S.E.2d

461, 465 (1953). In deciding plaintiff’s

claim, the court first must examine

Virginia law with respect to restrictive

covenants. The term restrictive covenant

an«

PREF CREE AE AMON (NRE ARE THEN RS II IRR EI

&

fg

nag

ta

Jla

universally signifies an agreement

between two parties restricting the use

of property or prohibiting certain uses.

Black’s Law Dictionary 1182 (5th ed.

1979). Land use covenants create rights

and duties between the original promising

parties. The covenantee’s rights are

called the benefit of the covenant, while

the covenantor’s duties are considered

the burden of the agreement. 5 Powell,

The Law of Real Property §{ 670[2] (1990).

If certain strict requirements are met,

either the benefit or the burden may

devolve on a successor to the property

interest of either the covenantee or

covenantor. When the benefit or burden

devolves, it is said to "run with the

land." Id. Otherwise, the covenant is

considered personal between the parties,

and will not devolve to any successors to

72a

the property. Under Virginia law, a.

restrictive covenant exists if the

covenant touches and concerns the land,

there is privity of estate, and the

parties intended the covenant to run with

the land. Net Realty Holding Trust v.

Franconia Properties, Inc., 544 F.Supp.

759, 762 (E.D. Va. 1982).

Defendant argued that proffers were

not restrictive covenants but personal

rights which did not attach to any

particular estate in Hazel’s property.

The court must determine whether a

covenant is a personal right, or attaches

to a particular estate, by the fair

interpretation of the grant aided, if

necessary, by the situation of the

property and the surrounding

circumstance. See, e.g., Burton v.

Chesapeake Box & Lumber Corp., 190 Va.

73a

755, 57 S.E.2d 904 (1950). Had Hazel

sold the property at issue, any new owner

would have taken title subject to the

proffers, and would have been permitted

to develop the land only in accordance

with the zoning. Proffers are noted in

official zoning maps, can be recorded,

and affect title. Therefore, the court

does not believe that the proffers merely

were collateral to the land, but that

they did "touch and concern" the land.

However, in order for a covenant to

run with the land, there must be privity

of estate. Privity describes “a

relationship that must exist between the

parties to a covenant. In Virginia,

there must be mutual tenurial privity

between the parties in order for real

covenants to run with the land. 5

Powell, The Law of Real Property

74a

{ 673[2]. The concept of mutual tenurial -

privity arose from English common law

under which the original covenantor, and

his successors, were tenants of the

landlord/covenantee. See Spencer’s Case,

77 Eng. Rep. 72 (QB 1583). The most

demanding view of privity of estate,

which Virginia follows, requires that

this landlord-tenant relationship exist

in order for the covenant to run with the

land. See Tardy v. Creasy, 81 Va. 553

(1886). The court cannot construe the

relationship between plaintiff and Hazel

as tenurial. Defendant is the owner of

the property interest; plaintiff

regulates that interest. Therefore, the

court does not find the requisite privity

of estate between plaintiff and Hazel.

The court agrees with defendant that the

proffers more closely are akin to

75a

affirmative covenants which are created

when the covenantor promises to perform

an act upon his land which benefits land

owned by covenantee. See Clark, Real

Covenants and Other Interests Which “Run

With Land" 97 (2d ed. 1947). Virginia

follows the rule that the burdens of

affirmative covenants do not run with the

land, and therefore are not compensable

property interests. Id. at 231.

This court recognizes that plaintiff

did not claim that proffers are, in fact,

restrictive covenants, but that they

closely resemble restrictive covenants.

In effect, plaintiff asked this court to

find that a proffer is equivalent to an

equitable servitude. An equitable

servitude is a covenant that is

enforceable in an action in equity. As

opposed to real covenants which are said

76a

to run with the land, an equitable.

servitude is treated as if the land

itself had become burdened with the

covenant. See Powell, supra at § 675(1).

Therefore, the covenant is enforced in

equity regardless of whether the parties

have met the strict requirements needed

to enforce a real covenant.

Equitable servitudes were created

from the experience that the formalism of

the rules for restrictive covenants were

to narrow in their application. Cheatham

v. Taylor, 148 Va. 26, 38-39, 138 S.E.2d

545, 549 (1927). However, covenants,

express or implied, restricting the free

use of land are not favored, and must be

construed strictly. Mid-State Equip. Co.

vw. Beli, 217 Va. 133, 140, 225 8.8.24

877, 884 (1976). The law places the

burden on the party seeking the benefit

nee

La nese oes eMpk ay oo Ata

ia, wht

a a

77a

of those conditions to prove that they

apply. Id. In order to find that an

equitable servitude exists, the intent of

the parties, especially that of the

common grantor, determines the existence

of the right. See Minner v. City of

Lynchburg, 204 Va. 180, 187, 129 S.E.2d

673, 678 (1963). Plaintiff did no more

than discuss, in general terms, the

reasons this court should find that an

equitable servitude exists, i.e.,

equitable servitudes and proffers both

are promises. Plaintiff pointed to no

authority, nor has the court been able to

find any, to sustain the contention that

a zoning ordinance may be considered an

equitable servitude. Additionally, while

equitable servitudes may be broader than

restrictive covenants, they generally are

enforced through injunctive relief, not

78a

monetary damages. The court is unwilling.

to find that the proffers are

sufficiently analogous to either

restrictive covenants, or equitable

servitudes, to sustain plaintiff’s claim.

D. Conditional Zoning Ordinances Are

Not Ultra Vires.

In Virginia, the state legislature

"may confer the police power of the state

upon cities and towns." Gorieb v. Fox,

145 Va. 554, 561, 134 S.E.2d 914, 916

(1926), aff*d, 274 0.8. 603 (1927). - By

allowing the county to regulate land use,

the legislature delegates part of its

police powers. See National Realty Corp.

v. City of Virginia Beach, 209 Va. 172,

174-75, 163 S.E.2d 154, 156 (1968).

However, the county’s powers are created

by statute, and are limited to those

conferred expressly, or by necessary

3

:

ie

79a

implication. Hylton Enters. v. Board of

Supervisors of Prince William County, 220

Va. 435, 440, 258 S.E.2d 577, 581 (1979).

Rather than treat the proffers merely as

conditional zoning ordinances, plaintiff

would have this court find that the

proffers created a property interest

which matured upon the rezoning of the

Prince William Tract. Defendant argued

that this theory for finding a property

interest rests on contract zoning which

is ultra vires (beyond the scope of

plaintiff's legislative power) and void

ab initio (an agreement which is null

from the start).

Impermissible contract zoning

results from a legislative authority

bargaining away its zoning power. Under

plaintiff’s theory, the proffers

constituted the developer’s consideration

80a

in a bargained-for exchange of.

plaintiff’s rezoning approval. Defendant

argued that, if plaintiff’s

interpretation is correct, plaintiff

accepted the proffers in exchange for not

enforcing its police powers because if

the "property interest" matured upon

rezoning, plaintiff would have

surrendered its ability subsequently to

rezone the Prince William Tract.’

Contesote that impinge upon legislative

or police powers are void. See Mumpower

v. Housing Auth. of City of Bristol, 176

Va. 426, 452, 11 S.E.2d 732, 742 (1940).

r Although plaintiff did not

concede that, by accepting proffers, it

gives up its ability to rezone, that

would be the practical result of a

"matured interest" unless plaintiff were

to claim it has rights to the proffers

even upon subsequent rezoning. That

certainly cannot be what plaintiff

intended.

rey ae ee ee ae oo

ee ee Ba a ee Can eee wee aren

8la

Therefore, if the court accepts

plaintiff’s interpretation, it would have

to.find that plaintiff engaged in ultra

vires activity. :

The express arrangement -- proffers

in exchange for rezoning -- presents a

strong argument of characterizing this

relationship as a contract. However,

these agreements are adopted within the

context of legislation that uses only

regulatory language, and that does not

give rise to contractual duties or

obligations on the part of the governing

body. The county cannot be presumed to

cede away its regulatory authority upon

accepting the erolters, therefore the

proffers cannot be property interests

which vested upon rezoning. No matter

how favorably it interprets the Virginia

zoning laws for plaintiff, the court

82a

cannot find that the State intended.

proffers to be anything more than

conditions for local zoning ordinances.

In s0 holding, this court recognizes

plaintiff’s need to be able to tailor

land use requirements closely to the

characteristics of particular parcels of

land. Local governing bodies, because of

their knowledge of local conditions and

the needs of their individual

communities, must be allowed wide

discretion in the enactment of zoning

ordinances. Accord Byrum v. Board of

Supervisors of Orange County, 217 Va. 37,

39, 225 S.E.2d 369, 371 (1976).

Therefore, this decision in no way stands

for the proposition that conditional

zoning under Virginia law a is ultra

vires and void ab initio.

ES SSR a er RT a sated

83a

E. Supremacy Clause

Defendant argued that the federal

government took the Prince William Tract

free of the local zoning ordinances, and

that federal land uses are not subject to

state or local land use laws, including

zoning regulations, because of the

superiority of the federal government

over the states and their potential

subdivision, i.e., the Supremacy clauses

of the United States Constitution,

article VI, clause 2. See 6 Rohan,

Zoning and Land Use Controls,

q 40.03(1) (a). Plaintiff contended that

the Supremacy Clause is not implicated in

this case and argued that, while the

federal government need not go through a

rezoning process in order to use the land

as a national park, it is not exempt from

conditions existing on the property at

84a

the time it took ownership. Plaintifé£ .

based this argument on the premise that

proffers constitute property interests.

Because the court has held that proffers

are not property interests, plaintiff,

were it to receive compensation from

defendant, in effect, would be enforcing

its zoning ordinance against the federal

government.‘ This, plaintiff cannot do.

See, e.g., Washington & O.D.R.R. v. City

of Alexandria, 191 Va. 184, 191, 60

S.E.2d 40, 44 (1950).

’ Plaintiff as much as admitted

this when it argued that Va. Code Ann.

§ 15.1-491(d) permits it to enforce its

proffers through suits for civil damages,

and by citing Board of County Supervisors

of Prince William County v. Sie-gray

Developers, Inc., 230 Va. 24, 334 S.E.2d

542 (1985) for the proposition that,

where a landowner voluntarily agrees to

make certain improvements and fails to do

so, the county can enforce completion.

ia

&

%

z

Ba

Es

h

5

5 3

ee ee ee

85a

Federal law preempts state law in

three circumstances: 1) where Congress

explicitly so provides; 2) where a state

regulates conduct in a field that

Congress intended to occupy exclusively;

and 3) state law is preempted to the

extent it actually conflicts with federal

law. English v. General Elec. Co., 110

S. Ct. 2270, 2274-75 (1990). Plaintiff’s

claim falls within the third situation

above. Plaintiff argued that, because

the Act did not expressly deal with the

zoning issue, the rule is not applicable.

That argument is without merit. "Because

of the fundamental importance of the

principles shielding federal

installations and activities from

regulation by the States, an

authorization of state regulation is

found only when and to the extent that

86a

there is a ‘clear congressional mandate,’ .

[or] ‘specific congressional action’ that

makes this authorization of state

regulation ‘clear and unambiguous.’"

Hancock v. Train, 426 U.S. 167, 179

(1976) (footnotes omitted). The intent

of the Act was to create a National

Battlefield Park. Nothing in the Act

suggests that defendant acquiesced to the

County’s local zoning powers on the

federal park land. Absent "clear and

unambiguous" intent to subject the land

to local zoning ordinances, defendant

simply is not subject to the regulations.

This case presents a direct conflict

between the County’ s local zoning

ordinance, and the government’s Act.

Plaintiff also argued that’ the

United States "came to the property as a

landowner [and] not a regulator." See

87a

Forth Leavenworth R.R.& Co. v. Lowe, 114

U.S. 525 (1885). While that is true, it

does not overcome the fact that plaintiff

cannot enforce its zoning ordinances on

federal land. See Kleppe v. New Mexico,

426 U.S. 529, 539 (1976). When Federal

law and State law conflict, Federal law

must prevail.

CONCLUSION

TIERS ARR BR Sear Fit ne Sat tata ge Nac noite api

The burden of proof was upon

plaintiff, and it made an extraordinary

effort to convince the court that a

proffer is a property right, but failed.

The court applauds the effort, but must

rule in favor of defendant. For the

reasons set forth above, the court grants

defendant’s motion for partial dismissal.

IT IS SO ORDERED.

s/ Moody Tidwell

MOODY R. TIDWELL

Judge

88a

16 USCS §429b

§ 429B. Manassas National Battlefield

Park

(a) Establishment; boundaries. There is

established as a unit of the national

park system in the Commonwealth of

Virginia the Manassas National

Battlefield Park, which shall contain

within its boundaries the important

historical lands relating to the two

battles of Manassas. The total area of

the park shall not be greater than four

thousand five hundred and twenty-five

acres. The boundaries of the park shall

be the boundaries depicted on the map

entitled "Boundary Map, Manassas National

Battlefield Park", dated October 1980,

and numbered 379/80,009, which shall be

on file and available for public

inspection in the offices of the National

fs. + er *

“3: RRS ose CIR ENA TE PPS pah en cbbaeK Daly. Nae,

NSE PE PIB Di NREL IRS: | PUR AL ER P S og, SB

89a

Park Service, Department of the Interior.

The Secretary shall publish in the

Federal Register, as soon as practicable

after the date of the enactment of this

Act, but no later than one year from the

effective date of this section, a

detailed description and map of the

boundaries. Notwithstanding section 7 (c)

of the Land and Water Conservation Fund

Act of 1965 (91 Stat. 211), as amended

(16 U.S.C. 4601) [16 USCS §4601-9(c)] the

Secretary may not make any changes in the

boundaries of the park. The Secretary

shall administer the park in accordance

with the laws, rules, and regulations

applicable to the national park systen.

(b) Addition to park. (1) In addition

to subsection (a), the boundaries of

the park shall include the area,

comprising approximately 600 acres,

90a

which is south of U.S. Route 29,.

north of Interstate Route 66, east

of Route 705, and west of Route 622.

Such area shall hereafter in this

Act [16 USCS §§ 429(b) et seq.] be

referred to as the "Addition".

(2) (A) Notwithstanding any other

provision of law, effective on

the date of enactment of the

Manassas National Battlefield

Park Amendments of 1988

[enacted Nov. 10, 1988]; there

SPSL eA aS CAS Sa ach PIN i tBu: Sho cemadory ove yey

ORS '

is hereby vested in the United

States all right, title, and

interest in and to, and the

right to immediate possession

of, all the real property

within the Addition.

(B) The United States shall pay

just compensation to the owners

ay

9la

of any property taken pursuant

to this paragraph and the full

faith and credit of the United

States is hereby pledged to the

payment of any judgment entered

against the United States with

respect to the taking of such

property. Payment shall be in

the amount of the agreed

negotiated value of such

property or the valuation of

such property awarded by

judgment and shall be made from

the permanent judgment

appropriation established

pursuant to 31 U.S.C. 1304.

Such payment shall include

interest on the value of such

property which shall be

compounded quarterly and

92a

computed at the rate applicable -

for the period involved, as

determined by the Secretary of

the Treasury on the basis of

the current average market

yield on outstanding marketable

obligations of the United

States of comparable maturities

from the date of enactment of

the Manassas National

Battlefield Park Amendments of

1988 [enacted Nov. 10, 1988] to

the last day of the month

preceding the date on which

payment is made.

(C) In the absence of a

negotiated settlement, or an

action by the owner, within 1

year after the date of

enactment of the Manassas

93a

National Battlefield Park

Amendments of 1988 [enacted

Nov. 10, 1988], the Secretary

may initiate a proceeding at

anytime seeking in a court of

competent jurisdiction a

determination of just

compensation with respect to

the taking of such nienisien

(3) Not later than 6 months after

the date of enactment of the

Manassas National Battlefield Park

Amendments of 1988 [enacted Nov. 10,

1988], the Secretary shall publish

in the Federal Register a detailed

description and map depicting the

boundaries of the Addition. The map

shall be on file and available for

public inspection in the offices of

94a

the National Park Service, -

Department of the Interior.

(c) Use of addition. The Secretary shall

not allow any unauthcrized use of the

Addition after the enactment of the

Manassas National Battlefield Park

Amendments of 1988 [enacted Nov. 10,

1988), except that the Secretary may

permit the orderly termination of all

operations on the Addition and the

removal of equipment, facilities, and

personal property from the Addition.

(April 17, 1954, ch 153, § 1, 68 Stat.

56; Oct. 13, 1980, P.L. 96-442, § 2, 94

Stat. 1885; Nov. 10, 1988, P. L. 100-647,

Title X, §10002, 102 Stat. 3810.)

95a

Virginia Code § 15.1-491

§ 15.1-491. Permitted provisions in

ordinances; amendments. -- A _ zoning

ordinance may include, among other

things, reasonable regulations and

provisions as to any or all of the

following matters:

(a) For variances as defined in §

15.1-430(p) or special exceptions as

defined in § 15-1.430(i) to the general

regulations in any district in cases of

unusual situations or to ease the

transition from one district to another,

or for buildings, structures or uses

having special requirements, and for

conditicnal zoning as defined in § 15-

1.430(q) and for the adoption, in

counties, or towns, therein which have

planning commissions, wherein the urban

county executive form of government is in

96a

effect, or in a city adjacent to or.

completely surrounded by such a county,

or in a county contiguous to any such

county, or in a city adjacent to or

completely surrounded by such a

contiguous county, or any town within

such contiguous county, and in the

counties east of the Chesapeake Bay as a

part of an amendment to the zoning map of

reasonable conditions, in addition to the

regulations provided for the zoning

district by the ordinance, when such

conditions shall have been proffered in

writing, in advance of the public hearing

before the governing body required by

§15-1-493 by the owner of the property

which is the subject of the proposed

zoning map amendment. Once proffered and

accepted as part of an amendment to the

zoning ordinance, such conditions shall

97a

continue in effect until a subsequent

amendment changes the zoning on the

property covered by such conditions.

However, such conditions shall continue

if the subsequent amendment is part of a

comprehensive implementation of a new or

substantially revised zoning ordinance.

(al) In the event proffered

conditions include a requirement for the

dedication of real property of

substantial value, or substantial cash

payments for or construction of

substantial public improvements, the need

for which is not generated solely by the

rezoning itself, then no amendment to the

zoning map for the property subject to

such conditions, nor the conditions

themselves, nor any amendments to the

text of the zoning ordinance with respect

to the zoning district applicable thereto

98a

initiated by the governing body, which -

eliminate, or materially restrict,

reduce, or modify the uses, the floor

area ratio, or the density of use

permitted in the zoning district

applicable to such property, shall be

effective with respect to such property

unless there has been mistake, fraud, or

a change in circumstances substantially

affecting the public health, safety or

welfare.

(a2) Any landowner who has prior to

July 1, 1990, proffered the dedication of

real property of substantial value, or

substantial cash payments for or

construction of substantial public

improvements, the need for which is not

generated solely by the rezoning itself,

but who has not substantially implemented

such proffers prior to July 1, 1990,

99a

shall advise the local governing body by

certified mail prior to July 1, 1991,

that he intends to proceed with the

implementation of such proffers. Such

notice shall identify the property to be

developed, the zoning district, and the

proffers applicable thereto. Thereafter,

any landowner giving such notice shall

have until July 1, 1995, substantially to

implement such proffers, or such later

time as the governing body may allow.

Thereafter, the landowner in good faith

shall diligently pursue the completion of

the development of the property. Any

landowner who complies with the

requirements of this subdivision shall be

entitled to the protection against action

initiated by the governing body affecting

use, floor area ratio, and density set

out in subdivision (al), unless there has

100a

been mistake, fraud, or a change in.

circumstances substantially affecting the

public health, safety, or welfare, but

any landowner failing to comply with the

requirements of this subdivision shall

acquire no rights pursuant to this

section.

(a3) The provisions of subdivisions

(al) and (a2) of this section shall be

effective prospectively only, and not

retroactively, and shall not apply to any

zoning ordinance text amendments which

may have been enacted prior to March 10,

1990. Nothing contained herein shall be

construed to affect any litigation

pending prior to July 1, 1990, or any

such litigation nonsuited and thereafter

refiled.

10la

Nothing in this section shall be

construed to affect oor impair’ the

authority of a governing body to:

1. Accept proffered conditions which

include provisions for timing or phasing

of dedications, payments, or

improvements; or

2. Accept or impose valid conditions

pursuant to subsection (c) of this

section, subsection H of §15.1-466, or

other provision of law.

(b) For the temporary application of

the ordinance to any property coming into

the territorial jurisdiction of the

governing body by annexation or

otherwise, subsequent to the adoption of

the zoning ordinance, and pending the

orderly amendment of the ordinance.

(c) For the granting of special

exceptions under suitable regulations and

102a

safeguards; and notwithstanding any other.

provisions of this article, the governing

body of any city, county or town may

reserve unto itself the right to issue

such special exceptions.

(d) For the administration and

enforcement of the ordinance including

the appointment or designation of a

zoning administrator who may also hold

another office in the county or

municipality. The zoning administrator

shall have all necessary authority on

behalf of the governing body to

administer and enforce the zoning

ordinance, including the ordering in

writing of the remedying of any condition

found in violation of the ordinance, and

the bringing of legal action to insure

compliance with the ordinance, including

103a

injunction, abatement, or other

appropriate action or proceeding.

(e) For the imposition of penalties

upon conviction of any violation of the

zoning ordinance. Any such violation

shall be a misdemeanor punishable by a

fine of not less than $10 nor more than

$1,000.

(f) For the collection of fees to

cover the cost of making inspections,

issuing permits, advertising of notices

and other expenses incident to the

administration of a zoning ordinance or

the filing or processing of any appeal or

amendment thereto.

(g) For the amendment of the

regulations or district maps from time to

time, or for their repeal. Whenever the

public necessity, convenience, general

welfare, or good zoning practice require,

104a

the governing body may by ordinance.

amend, supplement, or change the

regulations, district boundaries, or

Classifications of property. Any such

amendment may be initiated (i) by

resolution of the governing body, or (ii)

by motion of the local commission, or

(iii) by petition of the owner, contract

purchaser with the oowner’s written

consent, or the owner’s agent therefor,

of the property which is the subject of

the proposed zoning map amendment,

addressed to the governing body or the

local commission, who shall forward such

petition to the governing body; provided,

that the ordinance may provide for the

consideration of proposed amendments only

at specified intervals of time, and may

further provide that substantially the

same petition will not be reconsidered

105a

within a specific period, not exceeding

one year. Any such resolution or motion

by such governing body or commission

proposing the rezoning shall state the

above public purposes therefor.

In any county having adopted such

zoning ordinances all motions,

resolutions or petitions for amendment to

the zoning ordinance, and/or map shall be

acted upon and a decision made within

such reasonable time as may be necessary

which shall not exceed twelve months

unless the applicant requests or consents

to action beyond such period or unless

the applicant withdraws his motion,

resolution or petition for amendment to

the zoning ordinance or map, or both. In

the event of and upon such withdrawal,

processing of the motion, resolution or

petition shall cease without further

106a

action as otherwise would be required by.

this subsection.

(h) For the submission and approval

of a plan of development prior to the

issuance of building permits to —

compliance with regulations contained in

such zoning ordinance.

(i) For areas and districts

designated for mixed use developments as

defined in § 15.1-430(r) and planned unit

developments as defined in § 15.1-430(s).

(3) For the administration of

incentive zoning as defined in § 15.1-

430(t).

The ordinance may also provide that

petitions brought by property owners,

contract purchasers or the agents

thereof, shall be sworn to under oath

before a notary public or other official

before whom oaths may be taken, stating

107a

whether or not any member of the local

planning commission or governing body has

any interest in such property, either

individually, by ownership of stock ina

corporation owning such land,

partnership, as the beneficiary of a

trust, or the settlor of a revocable

trust or whether a member of _ the

immediate household of any member of the

planning commission or governing body has

any such interest. (Code 1950, § 15-

968.5; 1962, c. 407; 1964, c. 564; 1966,

c. 455; 1968, cc. 543, 595; 1973, c. 286;

1974, ¢c. 547; 1975, ec. 99, 375, 579,

582, 641; 1976, cc. 71, 409, 470, 683;

1977, c. 177; 1978, c. 543; 1979, c. 182;

1982, c. 44; 1983, c. 392; 1984, c. 238;

1987, c. 8, 1988, cc. 481, 856; 1989, cc.

359, 384; 1990, cc. 672, 868; 1992, c.

380.)

108a

Virginia Code § 15.1-478

§ 15.1-478. Recordation of plat as

transfer of streets, termination of

easements and rights-of-way, etc. -- The

recordation of such plat shall operate to

transfer, in fee simple, to the

respective counties and municipalities in

which the land lies such portion of the

premises platted as is on such plat set

apart for streets, alleys or other public

use and to transfer to such county or

municipality any easement indicated on

such plat to create a public right of

passage over the same; but nothing

contained in this article shall affect

any right of a subdivider of land

heretofore validly reserved.

Provided, that where the authorized

officials of a county, town or city

within which land is located, approve in

109a

accordance with the subdivision

ordinances of such county, town or city a

plat or replat of land therein, then upon

the recording of such plat or replat in

the Clerk’s office wherein land records

are maintained, all rights-of-way,

easements or other interest of the

county, town or city in the land included

on the plat or replat, except as shown

thereon, shall be terminated and

extinguished, except that an interest

acquired by the county, town or city by

condemnation, by purchase for valuable

consideration and evidenced by a separate

instrument of record, or streets, alleys

or easements for public passage subject

to the provisiors of § 15.1-481 or §15.1-

482 shall not be affected thereby. (Code

1950, § 15-792; Code 1950, § 15-967.13;

110a

1958, c. 460; 1962, c. 407; 1964, c. 564; .-

1974, c. 530; 1978, c. 590.)

lila

Prince William County Code

32-700.30. Conditional Zoning.

(1) Any applicant for a zoning map

amendment (rezoning) may, as a part of

his application, proffer reasonable

conditions concerning the use _ and

development of his property, including

also off-site improvements that may serve

or benefit his property and the public

welfare. Proffers shall be signed and

acknowledged by the owner of the property

or any agent authorized by a power of

attorney meeting the requirements of

subsection 32-700.03(1) (c).

(2) Every proffer statement shall

state that the applicant proffers that

use and development of the property shall

be in strict accordance with the

proffered conditions. Any revised

proffer statements shall state that it

112a

supersedes any proffer statements.

previously submitted and shall either

show the revisions by appropriate

annotation on its face or by reference to

a marrative description of changes

submitted at the same time. In the event

the applicant proffers to develop and use

his property in accordance with the

schematic land use plan, or other plans,

proffers, elevations, demonstrative

materials and written statements

submitted as part of the general

development plan, the proffer statement

shall so state and each copy of such

materials shall so provide, in accordance

with the provisions of the adopted

proffer policy. In the event of an

inconsistency between a specific written

proffer and a depiction upon a proffered

li3a

general development plan, the proffered

text shall control.

(3) The board of county supervisors,

when acting on an application for a

zoning map amendment, may adopt as a part

of the zoning map the proffered

conditions, in whole or in part, set

forth by the applicant. Once adopted by

the board of county supervisors, such

proffered conditions shall be binding on

the use and development of the property,

and shall continue in full force and

effect until a subsequent amendment

changes the zoning on the property

covered by such conditions; provided,

however, that such conditions shall

continue if the subsequent amendment is

part of a comprehensive implementation of

a new or substantially revised zoning

ordinance and/or map.

ll4a

(4) Proffered conditions adopted by.

the board of county supervisors shall be

in addition to the regulations provided

for the zoning district by the text of

this chapter. Except as standards may

have been expressly waived by the board

of county supervisors, as part of a

rezoning or special use permit approval,

development shall conform to mandatory

standards in effect at the time of final

plan approval if such standards exceed

proffered conditions accepted at the time

of rezoning.

(5) The zoning map, and other

appropriate files maintained by the

zoning administrator, shall reference the

existence of adopted proffered conditions

attached to various properties. Any site

plan, subdivision plan, development plat

or permit application thereafter

115a

submitted for development of property to

which proffered conditions have attached

shall conform with all such conditions,

and shall not be approved by any county

official in the absence of such

conformity. For the purpose of this

section, conformity shall mean _ such

conformity which leaves a reasonable

margin of adjustment due to final

engineering data, but conforms with the

general nature and intent of the

development, the specific uses, and the

general layout depicted by the plans,

profiles, elevations, and other

demonstrative materials presented by the

applicant.

116a

3. Trails

A community trail system shall

be provided which shall have natural

and/or all-weather surface and shall be

designed with several internal loops to

facilitate pedestrian movements through

the mixed-use development. To the extent

practicable this system shall link points

of historical/archaeological

significance.

6. Recreation

A community swimming

pool/center, two tennis courts and two

multi-purpose courts will be

provided/constructed in the approximate

location designated as active recreation

area on the Master PMD Zoning Plan. In

addition, a multi-purpose ballfield shall

be provided, which may be constructed

within the VEPCO easement proximate to

117a

the commuter parking lot. These

facilities shall be in fulfillment of

County recreation requirements.

9. On-Site Roadway Improvements

(a) Applicant shall proceed

forthwith, subject to the availability of

rights-of-way and easements and receipt

of necessary governmental approvals and

permits, to design and construct, in

accordance with applicable VDHET

criteria/standards, William Center

Boulevard (i.e., designated Road A in

applicant’s traffic report dated June 17,

1986) to a four-lane divided section from

its intersection with Groveton Road to,

if applicable, the I-66/Route 234 Bypass

interchange. If the design for said

interchange does not provide for a direct

connection to William Center Boulevard,

applicant shall extend said road to/from

118a

Route 29 or alternative off-site.

intersection, with appropriate right- and

left-turn deceleration lanes and traffic

signalization/controls at the eastern and

western termini/intersections.

(b) If requested by the County

and approved by the County and approved

by the Virginia Department of Highways

and Transportation ("VDH&T") at or prior

to final subdivision plat/site plan

approval, applicant or assigns shall (i)

dedicate approximately 4.5 acres of

right-of-way for the construction of the

Route 234 Bypass; and (ii) provide

construction and grading easements for

the planned roadway improvement which

will terminate upon completion of said

improvement. The dedication referenced

in (i) above shall be generally located

: rine = .

ee ee ae

119a

along subject property’s

western/southwestern boundary.

(c) Upon __ commencement _ of

n cons ion Vv a

constr i roa f

construction traffic shall be provided in

the general location of the easternmost

entrance on Route 29 as shown on the

Master PMD Zoning Plan.

10. Off-Site Roadway Improvements

(a) Upon occupancy of 500,000

gross square feet (GSF) of residential

and/or nonresidential uses, applicant

shall construct an additional eastbound

and a westbound land on Route 29 and a

northbound lane on Route 234 at the Route

234/Route 29 intersection. Said

commitment shall be subject to (i) the

availability of sufficient right-of-way

and/or necessary easements from the

120a

National Park Service; and (ii) no.

reconstruction/revision to the existing

box culvert and/or vertical or horizontal

alignments/cross-sections of Route 234 at

Young’s Branch.

(b) Upon occupancy of 1.5

million GSF of residential and/or

nonresidential uses, applicant shall (i)

reconstruct/improve Groveton Road to a

two-lane undivided section beginning at

the southern terminus of the Groveton

Road Bridge at I-66 southward to the

Route 621/Route 622 intersection; (ii)

construct a southbound right-turn lane at

the Route 621/Route 622 intersection

which shall extend approximately 800 feet

from the referenced intersection; (iii)

construct right- and left-turn

deceleration lanes at the other two

entrances on Route 29 as delineated on

12la

the referenced Plan; and (iv) upgrade

Groveton Road to a four-lane undivided

section from its intersection with

William Center Boulevard and extending

approximately 850 feet southward to the

northern terminus of the Groveton Road

Bridge at I-66. The aforesaid roadway

improvements referenced in (i) and (iv)

above shall include no

reconstruction/improvement to the

Groveton Road Bridge.

(c) Upon occupancy of 2.5

million GSF of residential and/or

nonresidential uses, applicant shall (i)

upgrade William Center Boulevard to a

six-lane divided section from its

respective intersections with Route 29

(or with the I-66/Route 234 Bypass

interchange) and Groveton Road for a

distance of approximately 1500 feet (or

122a

comparable distance as determined by -

VDH&T) and 1800 feet respectively; and

(ii) construct an additional eastbound

and westbound lane at the Route 621/Route

622 intersection which shall extend

approximately 915 feet and 410 feet,

respectively, from the referenced

intersection.

14. Route 234 Bypass/I-66

Interchange

Applicant shall contribute a

total of $2,000,000.00 towards the

construction of the proposed I-66/Route

234 Bypass interchange under the

circumstances and in the time frames set

forth below, which obligation shall be

subject to the credits and conditions

precedent also set forth below:

(a) Upon the issuance of

occupancy permits for a cumulative total

123a

of 1 million GSF of nonresidential use,

applicant shall provide Prince William

County $500,000.00 as aforesaid;

(b) Upon the issuance of

occupancy permits for a cumulative total

of 1.5 million GSF of nonresidential use,

applicant shall provide Prince William

County an additional $500,000.00 as

aforesaid;

(c) Upon the issuance of

occupancy permits for a cumulative total

of 2.2 million GSF of nonresidential use,

applicant shall provide Prince William

County an additional $1,000,000.00 as

aforesaid;

(d) Applicant’s obligation to

provide the aforesaid contributions at

the times specified shall be contingent

upon (i) with respect to subparagraphs a

and b above, the existence of an approved

124a

final design of the aforesaid interchange.

and the inclusion in said design of

provision for direct ingress and egress

westbound and eastbound to and from

subject property by way of a ramp system

directly into and out of = subject

property; (ii) with respect to

subparagraph c above, the availability

and commitment of funds by Prince William

County and others sufficient to provide

for 75% of the cost of right-of-way

acquisition and construction of said

interchange and associated access

improvements. The aforesaid

notwithstanding, if the conditions

precedent set forth in (i) and (ii)

immediately above have not been met by

Prince William County at the times set

forth in subparagraphs a, b, andc above,

applicant’s obligation to make the

125a

contributions pursuant to subparagraphs

a, b, and c above shall be cumulative and

shall continue as an obligation of the

applicant until the aforesaid conditions

precedent shall have been met by the

County, at which time (s) the

contributions shall be made by the

Applicant. If Prince William County

completes the design and construction

provisions for said interchange as set

forth in (i) and (ii) immediately above

prior to the applicant’s phased

development/contribution program as

specified in subparagraphs a, b, and oc

above, applicant’s obligation to make the

aforesaid contributions shall continue

and be payable to Prince William County

at the times set forth in a, b, andc

above, respectively.

20. Public Land Dedication

126a

Applicant shall provide a total.

of five (5) acres within the employment

component of subject property for a fire

station and a commuter parking lot or

such other public facility as shall be

mutually agreed upon by and between

Prince William County and the applicant.

127a

IN THE UNITED STATES CLAIM COURT

No. 610-89 L

PERCH ASSOCIATES LIMITED FILED

PARTNERSHIP, MASON DEC 18 1990

ASSOCIATES GENERAL

PARTNERSHIP, YORK LIMITED

PARTNERSHIP, AND TYSON-MCLEAN

ASSOCIATES LIMITED PARTNERSHIP

Plaintiffs JUDGMENT

MARRIOTT CORPORATION

Intervenor

Vv.

THE UNITED STATES

Defendant

Pursuant to the court’s order of

December 17, 1990, allowing the joint

motion, filed December 17, 1990, for

entry of final judgment.

IT IS ORDERED AND ADJUDGED this

date, pursuant to Rule 58, that Perch

Associates Limited Partnership (as agent

for all plaintiffs) recover of and from

the United States the sum of $67,630,000,

plus $13,254,995 in interest on such sum

128a

compounded quarterly from November 10, .

1988 until December 16, 1990, as provided

for 16 U.S.C. § 429b, and $19,152.76 in

per diem interest thereafter.

IT IS FURTHER ORDERED AND ADJUDGED

that imtervenor, Marriott Corporation,

recover of and from the United States the

sum of $2,370,000, plus $464,543 in

interest on such sum compounded quarterly

from November 10, 1988 until December 16,

1990, as provided for in 16 U.S.C.

§ 429b, and $671.24 in per diem interest

thereafter.

No costs, fees or expenses.

Frank T. Peartree

Clerk of Court

December 18, 1990 By_/s/Linda A. Eddin

Deputy Clerk

NOTE: As to appeal, 60 days from this

date, see RUSCC 72. Filing fee

is $105.00

——

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.