Appendix — Board of County Supervisors v. United States, 116 S. Ct. 61 (1995) (No. 94-1921)
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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
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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
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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
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5
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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
——
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