Selected Recent Zoning and Real Estate Decisions in Virginia

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Fourth Circuit Court of Appeals

These appeals concern whether three separate provisions of federal law serve to preempt an ordinance enacted by the City of Alexandria, Virginia (the "City"). The City's ordinance has been applied to Norfolk Southern Railway Company through a series of haul permits. In its appeal, the City maintains that the district court erred in ruling that two federal statutes -- the Interstate Commerce Commission Termination Act (the "ICCTA") and the Hazardous Materials Transportation Act (the "HMTA") -- preempt the ordinance and haul permits. See Norfolk S. Ry. Co. v. City of Alexandria, No. 1:08-cv-618, 2009 U.S. Dist. LEXIS 31732 (E.D. Va. April 15, 2009) (the "District Court Opinion"). By cross-appeal, Norfolk Southern challenges the court's conclusion that a third statute, the Federal Rail Safety Act (the "FRSA"), does not also preempt the ordinance and permits.

U.S. District Courts for the Eastern and Western Districts of Virginia

Glassman v. Arlington County, 2010 U.S. Dist. LEXIS 35745 (E.D. Va. Apr. 12, 2010)

Plaintiff brings this action against Arlington County, Virginia (Arlington County), 1210 North Highland Street (1210 N. Highland), the Views at Clarendon Corporation, Inc. (The Views), the virginia Housing Development Authority (VHDA), and the First Baptist Church of Clarendon (FBCC). Plaintiff alleges excessive entanglement with and preferential treatment of the FBCC, in violation of the First Amendment of the United States Constitution and the Virginia State Constitution, with respect to the development of an affordable housing project with the First Baptist Church of Clarendon. Plaintiff added the VHDA as a Defendant predicated upon the allegation of Arlington County that it had disbursed all of its funding to VHDA as of December 14, 2009. The remaining Defendants were added based on Plaintiff's allegation of conspiracy with the County to violate Plaintiff's rights under the United States and Virginia Constitutions and based on their unjust enrichment in receipt of constitutionally improper loan proceeds.

Lee v. Zom Clarendon, L.P., 689 F. Supp. 2d 814 (E.D. Va. 2010)

At issue in this diversity easement dispute is whether plaintiff's evidence, presented at a bench trial, clearly and convincingly establishes an easement by prescription. In essence, the parties own adjacent properties located at N. Irving Street and Washington Boulevard in Arlington, Virginia, and the purported easement (the "driveway") forms a 14-foot-wide "L-shape," running from N. Irving Street alongside the northwest and southwest borders of the Reamy house, the property for which plaintiff claims the benefit of an easement by prescription. Plaintiff argues that her family has used the driveway continuously since 1956, and therefore that this use ripened into a prescriptive right by 1976 pursuant to the unrebutted presumption that this use was under claim of right. In response, defendant argues that plaintiff's use was neither adverse nor exclusive, and that plaintiff's evidence at trial does not meet the clear and convincing standard of proof. At the bench trial held on December 8, 2009 and February 4, 2010, the parties presented witnesses and exhibits in support of their contentions.  As the parties have fully briefed and argued their positions, plaintiff's claim to an easement by prescription is ripe for disposition.

Virginia Supreme Court

James v. City of Falls Church, 280 Va. 31 (Va. 2010)

The trial court did not err in granting a motion to strike the evidence, or in dismissing an action by a church which had been denied an application for consolidation of several lots after consideration by a zoning administrator, planning staff, and the locality's planning commission. The circuit court did not fail to apply the correct standard of review, and the church failed to show that the planning commission's denial of its consolidation application was not properly based on the applicable ordinances, or was arbitrary or capricious, as was its burden of proof under Code §§ 15.2-2259(D) and -2260(E). The circuit court did not err in finding that the commission had the right and authority to disregard the zoning administrator's interpretation of a local ordinance in deciding whether to approve or disapprove the consolidation application. The judgment is affirmed.

Covel v. Town of Vienna, 280 Va. 151 (Va. 2010)

The judgment is affirmed in three consolidated circuit court actions involving challenges to a local historic preservation ordinance and decisions made by the locality thereunder. No evidence in the record rebuts the presumption of validity of the locality's decision denying a certificate of appropriateness to build a fence and denying permission to remove various parcels from the historic district. Code § 15.2-1427(C), reenacted in 2000, bars all non-constitutional challenges to the adoption of ordinances existing at that time, such as the ordinance involved in these cases. The ordinance provisions at issue here are sufficiently precise and definite to give fair warning of the information required for applications under its terms, and no error is found in the judgment of the circuit court dismissing the as-applied challenge to the ordinance.

Snead v. C & S Props, 2010 Va. Lexis 42 (Va. 2010)

In an injunction proceeding arising from allegations that an easement was subject to encroachment, the trial court erred in refusing permanent injunctive relief upon a finding that the encroachment was not a material interference with the dominant owners' rights because vehicular access remained possible. The judgment is reversed and the case is remanded for entry of permanent injunctive relief barring encroachment on the full width of the easement.

Schefer v. City Council of Falls Church, 2010 Va. Lexis 47 (Va. 2010)

In a declaratory judgment action by a landowner against a city challenging a zoning ordinance that sets different building height limits for standard and substandard lots as an alleged violation of the uniformity requirement of Code § 15.2-2282, the circuit court did not err in granting summary judgment for the defendant city because it uniformly applies its building height regulations for one-family dwellings on standard lots and uniformly applies its building height regulations for one-family dwellings on substandard lots in the zoning district. On plaintiff's further contention that the ordinance violated equal protection principles, because the height regulation is not inherently suspect involving infringement upon fundamental rights, plaintiff was required to establish that the ordinance was unreasonable, and failed to do so. Therefore plaintiff failed to rebut the presumption of its validity. The judgment is affirmed.

Hafner v. Hansen, 2010 Va. Lexis 52 (Va. 2010)

The circuit court was plainly wrong in holding that a party established by clear and convincing evidence a prescriptive easement for use of an underground sewer line. The evidence failed to establish knowledge by the owner of the burdened estate or her predecessors in title. As a general rule, when underground pipes have not been physically apparent throughout the prescriptive period and the servient landowner has not had notice of the existence of those pipes, the use of the servient estate is not considered to be sufficiently open and notorious to satisfy the requirement of adverse use necessary for the establishment of a prescriptive easement and courts have declined to recognize such easements. The judgment is reversed and the case is remanded.

Bailey v. Town of Saltville, 2010 Va. Lexis 53 (Va. 2010)

Considering the language appearing in a 1909 agreement and deed contemporaneously made by the defendant's predecessors in title concerning an 80 foot-wide strip of property conveyed to a railroad company for use as a right of way, the deed conveyed a fee simple interest in that property, rather than an easement. The deed does not feature any words of limitation that modify the words of grant, and does not describe the interest being conveyed as anything other than a complete conveyance of land. Thus, the circuit court did not err in finding that the plaintiff town, to which the railroad company had transferred all of its right and title to the property and improvements thereto via quitclaim deed, is presently the fee simple owner. The judgment of the circuit court is affirmed.

Shilling v. Baker, 279 Va. 720 (Va. 2010)

The trial court did not err in concluding that a cemetery did not exist on a hilltop property where the cremated remains of plaintiff's grandfather and other relatives had been scattered, either prior to or at the time that an urn containing the cremated remains of plaintiff's mother was buried, or in finding that the interment of the urn at that location violated the county zoning code provision requiring a special use permit to use the land as a cemetery. Under applicable law, the scattering of cremains was insufficient to create a cemetery. The judgment is affirmed.

Marble Technologies v. City of Hampton, 2010 Va. Lexis 32 (Va. 2010)

In a suit for declaratory and injunctive relief against enforcement of a city zoning ordinance on the grounds that it exceeded city authority in violation of Virginia law and Dillon's rule, the ordinance, which makes inclusion in the federal Coastal Barrier Resources System a criterion for designating lands to be part of a Resource Protection Area under the Chesapeake Bay Preservation Act, violates the General Assembly's express mandate that a locality use the criteria developed by the Chesapeake Bay Local Assistance Board to determine the extent of the Chesapeake Bay Preservation Area within its jurisdiction. The zoning provisions challenged in this appeal are void insofar as they include lands in protection areas on the basis of the federal Coastal Barrier Resources Act's applicability. The judgment of the circuit court is reversed and final judgment is entered in favor of the plaintiff landowners.

County of Chesterfield v. Tetra Associates, 2010 Va. Lexis 40 (Va. 2010)

In a declaratory judgment action arising from a county's disapproval of a preliminary subdivision application, the circuit court erred by declaring county code provisions void in their entirety. However, an applicable county subdivision code provision is void as an exercise of power not authorized by the General Assembly, and the definitions of "Subdivision, lot" and "Subdivision, residential parcel" are void as applied to the plaintiff's preliminary subdivision application for its property located in an agricultural district. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

W&W Partnership v. Prince William County Board of Zoning Appeals, 2010 Va. Lexis 22 (Va. 2010)

A zoning administrator's ruling that a voluntary conveyance of land within the owner's parcel to the Commonwealth for a road, physically separating the remaining portions of that parcel, did not effect a legal separation of such parcel into two lots, affirmed by the local board of zoning appeals and then the circuit court, was correct. Legal separation of property required that the owner, at minimum, duly record a change in the legal description of the retained property either by metes and bounds or by plat. The judgment is affirmed.

De Benveniste v. Aaron Christensen Family, LP, et al., 278 Va. 317, (Va. 2009)

In this opinion, the Court considered the question of (i) whether the court may require a cotenant to share expenses that increase the value of real property but do not result in permanent improvements to it, and (ii) whether the doctrine of unclean hands would bar such an award under the facts of the present case. The Christensens and Mary Villon De Benveniste ("Mary") were joint owners of a parcel of real property. The Christensens subdivided the property into multiple lots. In accomplishing this subdivision, the Christensens falsely represented themselves as the sole owners of the property on a land development application. The Christensens later filed suit against Mary seeking allotment of the property, a sale in lieu of partition or a partition of the property. The trial court held that Mary was required to pay a share of the expenses of the subdivision and granted the Christensens the opportunity to purchase the property and, should they not purchase it, it would be sold and the proceeds divided, with Mary's proceeds reduced by her share of the expenses of the subdivision. The property was eventually sold to a third party. Mary appealed to the Supreme Court of Virginia.

Generally, a joint tenant who constructs improvements on property is entitled in a partition suit to compensation for the improvements, even in the absence of proof that the cotenant agreed to such improvements. Although the subdivision of the property was an intangible improvement, it nonetheless increased the property's value. This increase is not necessarily permanent as the subdivision plan could be permitted to lapse, however in this case the increase in value was realized upon the sale of the property. Therefore, it was not error for the trial court to treat the subdivision as a "permanent improvement" and require Mary to pay her share of the expenses.

The trial court also did not err in holding that the doctrine of unclean hands did not preclude Mary from being required to share in the subdivision expenses. Mary sent mixed signals to the Christensens regarding her position on the subdivision. Mary contended that she did not consent and the Christensens knew she opposed the subdivision. However, there was also evidence that Mary was kept informed of the subdivision process and expressed approval and satisfaction at the progress. Although the land development application falsely listed the Christensens as the sole owners of the property, this defect is not sufficient to preclude recovery by the Christensens of compensation for Mary's share of the subdivision expenses in light of Mary's mixed signals.

Burdette V. Brush Mountain Estate, LLC, 278 Va. 286 (Va. 2009)

This case addressed the issue of whether an easement is required by the Code of Virginia to be conveyed by a deed or will and whether the trial court erred in determining that the two parcels in this case were encumbered with a particular easement. The easement in question was noted on a plat which was referenced in a deed conveying the real property. The Court held that, because an easement is not an estate, §55-2 of the Code of Virginia does not require easements to be conveyed solely by deed or will. However, the Court also held that there was no conveyance of an easement in this case. The plat was only mentioned in the deeds in connection with the property being conveyed, and not in the phrase subjecting the conveyance to easements of record. In addition, a plat alone cannot serve as an instrument of conveyance. An instrument of conveyance, containing operative words of conveyance to demonstrate intent to grant an easement, is required to grant an easement.

Anderson v. Delore, 278 Va 251 (Va. 2009)

In a dispute alleging that, by placing a dock, rip rap, and beach area within the "extended lot lines" of an adjacent lot, a neighbor encroached upon an express easement granted to the landowners to secure access to a lake and violated certain zoning ordinance provisions, the circuit court did not err in refusing to issue an injunction requiring removal of these improvements where the landowners failed to prove that their easement included the land on which the neighbor allegedly encroached. The circuit court also did not err in refusing to grant relief based upon the alleged zoning ordinance violations, as the ordinance provisions did not create a private right of action. The judgment is affirmed.

Board of Supervisors of Stafford County, et al. v. Crucible, Inc., 278 Va. 152; 2009 Va. LEXIS 75 (Va. 2009)

In this appeal the Court considered whether a zoning verification letter constitutes a significant affirmative governmental act under § 15.2-2307 of the Code of Virginia and whether a party must first seek a vested rights determination from the zoning administrator prior to seeking such relief from the circuit court. Prior to purchasing certain property located in the A-1 zoning district, Crucible, Inc. ("Crucible") sought a zoning verification letter including a determination of whether their proposed facilities would constitute a "school" under the Stafford County Zoning Ordinance. Crucible received a letter titled "Zoning Verification" from the zoning administrator which provided that the facility would be classified as a "school" and that the verification is subject to change. Crucible purchased the property and the Stafford County Zoning Ordinance was subsequently amended such that a "school" was no longer permitted on a "by right" basis in the A-1 zoning district. Crucible filed a declaratory judgment proceeding in the Circuit Court of Stafford County and that court held that Crucible was not required to seek a vested rights determination from the zoning administrator prior to filing a complaint in circuit court and further held that Crucible had a vested right to develop a "school" on its property on a "by right" basis. The Court held that the circuit court did not err in its conclusion that Crucible was not required to first obtain a vested rights determination from the zoning administrator. However, a significant affirmative government act is a prerequisite to obtaining a vested right in a land use. The zoning verification letter was not a significant governmental act as it did not affirmatively approve the project and specifically stated that the verification was subject to change. Therefore, the Court held that Crucible did not obtain a vested right to construct a "school". In addition, Crucible did not obtain a vested right to construct a "school" pursuant to §15.2-3211(C) as the zoning verification letter did not grant permission to use the property in a way that was otherwise not allowed under then current zoning laws.

McLane, Fairfax County Zoning Administrator v. Vereen, et al. 278 Va. 65; 2009 Va. LEXIS 72 (Va. 2009)

This case involved consideration of whether the circuit court erred when it ordered the payment of fines for noncompliance with the terms of a consent decree in an amount less than the rate specified in the consent decree endorsed by Fairfax County and the affected property owners. The circuit court entered an order in the case on June 18, 2008, from which the County appealed, and another order on July 9, 2008 which provided additional explanation of the earlier action. The Court held that the County's appeal was not procedurally barred as the County was not required to note an objection to the July 9, 2008 alternate explanation because it was not an alternative holding. Based on its contents, the consent decree in this case was a final judgment and, therefore, its terms were not subject to modification by the court after 21 days. The circuit court erred in reducing the amount of fines owed by the Vereens to the County.

Burwell's Bay Improvement Association v. Scott, et al., 277 Va. 325 (Va. 2009)

The Court considered the question of whether a 1925 Circuit Court of Isle of Wight County order granting a specific person the "right and privilege" to erect a wharf was sufficient to convey riparian rights to the recipient's successors in interest. The trial court issued a letter opinion holding that the successors in interest owned riparian rights. However, on appeal the Court held that the privileges granted by the 1925 court order do not pass to successors. In fact, the 1925 court order specified only the individual as the grantee. Therefore, the personal privilege the grantee received expired when he died. The judgment of the trial court was reversed and the case was remanded to the trial court to consider the claims of adverse possession or prescription based upon the evidence previously presented at trial, which claims were not decided by the trial court in its initial decision.

Hale, et al. v. Board of Zoning Appeals for the Town of Blacksburg, 277 Va. 250 (Va. 2009)

The issues presented in this case were whether "the circuit court correctly applied Code § 15.2-2307 in finding that the owner/developers of a parcel of real property obtained a vested right to a particular use of the property under a rezoning ordinance subject to their proffers and, thus, are not subject to a subsequent amendment to the locality's zoning ordinance that placed a limitation on that use" and whether "Code § 15.2-2298(B) would bar the locality from enforcing the amendment of the zoning ordinance against the property." The Court held that the developers did not obtain a vested right based upon the governmental act of acceptance of proffers which specified retail sales as the particular use. The circuit court erred in affirming the decision of the Board of Zoning Appeals finding that the developers had a vested right to the use of the property for retail sales free from the restrictions of the amendment to the zoning ordinance requiring a special use permit for large retail sales structures. Furthermore, § 15.2-2298(B) does not bar the locality from enforcing the amended zoning ordinance against the property as the creation of a multi-use path and contribution towards improvement of a street intersection do not implicate the provisions of § 15.2-2298(B).

Helms, et al. v. Manspile, et al., 277 Va. 1 (Va. 2009)

In this case, owners of adjoining tracts of land each claimed title to a parcel of land ("Parcel 2") by adverse possession. The actual boundary line could not be determined because the descriptions in both parties' deeds were insufficient. The Helms' and their predecessors in title at various points in time enclosed Parcel 2 with a fence, kept livestock on it, erected buildings on it, used a tractor to clear brush from it, maintained dog kennels on it, and constructed a "skid road" and hauled timber on it. When the Helms' desired to haul timber across a portion of the Manspile's property, they sought permission, which was denied. The Helms' then proceeded to haul the timber across Parcel 2, without asking for permission. J. Manspile testified that he did not believe he had the right to prevent the Helms' from hauling the timber across Parcel 2. In order to acquire title by adverse possession, the claimant must show "actual, hostile, exclusive, visible, and continuous possession, under a claim of right, for the statutory period of 15 years." The Court held that the Helms proved each of these necessary elements. The Manspiles also claimed that they have an easement to use a road extending from their property to a public road over the southern portion of the Helms' property. The circuit court correctly ruled that this easement had been abandoned. The Manspiles have been barred from using the alleged easement by the Helms' for over 20 years and improvements on the property blocked the easement for more than 30 years. The evidence showed that the easement had not been used since 1959. The Court held that if this easement ever existed, it had been abandoned by the Manspiles.

Virginia Highlands Airport Authority v. Singleton Auto Parts, Inc., 227 Va. 158 (Va. 2009)

The Virginia Highlands Airport Authority sought an avigation easement to remove approach zone obstructions on Singleton Auto Parts, Inc.'s property which were preserved pursuant to a grandfather clause in the local zoning ordinance (the "Ordinance"). At the trial court level, the jury returned a verdict in Singleton's favor for $130,000 for the taking of Singleton's property and for damages to the residue. The Supreme Court of Virginia held that the easement "constituted a taking only to the extent that it created a right in the Airport Authority to remove the grandfathered obstructions situated on the property which penetrated the existing approach zone for incoming and outgoing aircraft." The easement imposed the same restrictions on vertical development as the Ordinance. It was error for the trial court to permit the presentation of evidence of damages from a taking of airspace rights Singleton did not possess after enactment of the Ordinance. It was further error to permit Singleton to present evidence of speculative damages from potential future lower flights and increased noise, vibrations, fumes, and traffic. The trial court's judgment was reversed and the case remanded for a hearing on the issue of damages to Singleton's property from the Airport Authority's right to remove the trees obstructing the approach zone.

Virginia Court of Appeals

Souter v. County of Warren, 2010 Va. App. LEXIS 223 (Va. Ct. App. June 1, 2010)

Julia E. Souter, appellant, appeals a matter in which the trial court found her in civil contempt stemming from her failure to maintain her property in compliance with local zoning ordinances. On February 25, 2008, the trial court found appellant in civil contempt for interfering with efforts of Warren County (the County) to clean appellant's property and bring it into compliance with local ordinances prohibiting the accumulation of inoperable automobiles and other materials. The court sentenced appellant to six months in jail. The sentence was suspended upon conditions that appellant not interfere with the County's future efforts to clean the property and, among other things, that she maintain the property in proper condition once the clean up was completed. On November 17, 2008, the trial court found appellant in violation of her suspended sentence for failing to maintain the property in compliance with zoning ordinances. The trial court revoked appellant's suspended sentence and ordered her to jail, noting that if and when she or her agent restored the property to its proper condition, she would be released. On March 13, 2009, the trial court found appellant had caused the clean up of her property and abated the zoning violations that resulted in the revocation of her suspended sentence. Accordingly, the trial court ruled appellant was eligible for release, and resuspended the remaining portion of her sentence.

Clarence M. Bowser v. Sheila B. Guenard, 2009 Va. App. LEXIS 266 (Va. Ct. App. 2009)

Mr. Bowser appealed the trial court's orders related to title and easement issues in a real estate dispute between the parties and ancillary contempt proceedings in which he was found in civil contempt of court on three occasions. As the Court of Appeals does not have jurisdiction over the portion of the appeals raising real estate title and easement issues, that portion of the case was transferred to the Supreme Court of Virginia. The court found that the record in this case contained no transcript or written statement of the facts, the record failed to establish that Mr. Bowser presented the issues he raised on appeal to the trial court, and Mr. Bowser failed to cite any legal authority for his arguments. Therefore, the Court affirmed the first two decisions of the trial court as to the ancillary civil contempt proceedings. The third contempt order was dismissed without prejudice as it was not a final order at the time of the appeal.

Virginia Circuit Courts

McLane v. Clark, 2010 Va. Cir. LEXIS 66 (Va. Cir. Ct. June 14, 2010)

This matter is before the Court on the Fairfax County Zoning Administrator's (the "County") Motion for Summary Judgment. At the hearing on May 14, 2010, the parties were instructed to submit supplemental memoranda to the Court addressing the issue of whether a previous violation of a zoning ordinance entitles the County to summary judgment in its subsequent suit for declaratory and injunctive relief.

Commonwealth-Abingdon Partners, LP v. Town of Abingdon, Virginia, 2009 Va. Cir. Lexis 76 (Va. Cir. Ct. 2009)

In this decision, the Circuit Court considered the question of whether the Plaintiff had a vested right to proceed with development of a project in substantial conformity with a final site plan presented to the Town of Abingdon Planning Commission (the "Commission").

The court first decided the issue of whether the actions of the Commission created vested rights upon which the Plaintiff was entitled to rely pursuant to § 15.2-2307 of the Code of Virginia, subject to the Plaintiff demonstrating that it incurred substantial obligations or expenses in pursuit of the project in reliance on the significant affirmative governmental act. The court held that the Commission's acceptance of the preliminary subdivision plat and later withdrawal of said acceptance did not create a significant affirmative governmental act upon which the Plaintiff was entitled to rely.

The court then decided the issue of whether the Commission's actions constituted adoption of the final site plan, thereby creating a significant affirmative governmental act upon which the Plaintiff could rely. The Plaintiff submitted both the final subdivision plan and the final site plan to the Commission. The Commission recommended denial of the final subdivision plat, which precluded consideration of the final site plan as it depended on the property lines established in the final subdivision plan. The Plaintiff's position is that the failure to act on the final site plan within sixty days effectively approved the plan under Abingdon's zoning ordinance. As the site plan showed divisions of parcels which would be a subdivision of land requiring prior approval and the subdivision document was not approved, the Commission could not proceed on the site plan, consequently their one vote addressed both issues. Therefore, the Commissions actions did not create a significant governmental act upon which the Plaintiff could rely.

Voorhees v. County of Fairfax Board of Zoning Appeals, 2009 Va. Cir. Lexis 84 (Va. Cir. Ct. 2009)

In this case, the Voorhees' appealed the Fairfax County Board of Zoning Appeals' ("BZA") denial of their appeal of a grading permit. The grading plans in question were approved on April 20, 2007, permits were granted on May 9, 2007, and the Voorhees' appeal was filed on May 23, 2007. The BZA denied the appeal on the grounds that it was not timely filed and the Voorhees' appealed to the Circuit Court.

The Voorhees' claimed that the permits were void ab initio for failure to provide notice before subdivision. However, the Voorhees' were collaterally estopped from raising this issue as they were parties to a prior case which resulted in a final decision regarding this factual issue. The prior case held that the two lots were separate, developable lots, therefore demolition of a single structure spanning the two lots and construction of a structure on each of the lots did not result in a "subdivision" of those lots.

The BZA's denial of the appeal as untimely filed was upheld by the Circuit Court. The time period began to run at approval of the grading plans and not at issuance of the permit. The appeal was filed with the BZA more than 30 days after the April 20, 2007 approval of the grading plans.

Finally, the notice provisions of the subdivision ordinance do not apply to this case because the development did not constitute a subdivision, therefore the Voorhees' due process rights were not violated by the failure to give notice.

Covel v. Town of Vienna; PMY Associates v. Town of Vienna, 2009 Va. Cir. LEXIS 20 (Va. Cir. Ct.2009)

Petitioners in this case claimed that (i) the Windover Heights Historic District (the "WHHD") was established in a manner inconsistent with constitutional and statutory law and (ii) the decisions of the Vienna Town Council (the "Town") to deny Petitioners' applications to remove various properties from the WHHD and Covel's application for a Certificate of Appropriateness to build a fence were made arbitrarily and capriciously. The court concluded that there is a legal and factual basis for concluding that the WHHD was properly created pursuant to the Vienna Town Code and authority delegated to the Town. The court also found that Petitioners' argument that §§ 18-280.1 et. seq. of the Vienna Town Code is unconstitutionally vague as applied to them was without support in the evidence or governing authorities. In addition, none of the decisions made by the Town were arbitrary, capricious, or unreasonable.

Fairfax County Water Authority v. City of Falls Church, 2009 Va. Cir. LEXIS 17 (Va. Cir. Ct. 2009)

The City of Falls Church (the "City") provides water services to residents and businesses located in Fairfax County on a for profit basis. In fact, approximately ninety percent of the City's customers are Fairfax County residents. The City previously had an exclusive agreement to provide these services, however that agreement has since expired. The Fairfax County Water Authority (the "Water Authority") also serves a portion of this area. In this case, a developer in Fairfax County desired to relocate the City's water lines (at its own cost). The City refused to permit the relocation unless the developer promised to connect exclusively to the City's water system. However, the developer preferred to connect to the Water Authority's system.

The Water Authority's complaint alleged (i) monopolization and attempted monopolization under the Virginia Antitrust Act, (ii) tortious interference with a business expectancy, and (iii) that the City's practice of overcharging for services and transferring profit to the general fund to subsidize other services constitutes an unconstitutional extra-territorial tax. The Water Authority sought (i) an injunction to prevent the City from threatening people and using its easements as a weapon, (ii) approximately $21 million in damages, and (iii) a judgment that the City's practice of overcharging for water and transferring the profits to its general fund amounts to an unconstitutional extraterritorial tax. The City demurred to all counts.

The court overruled the demurrer in its entirety. The court found that the Legislature did not intend to authorize the City to operate waterworks outside its geographic limits without regard to anticompetitive effect. The Water Authority properly pled an antitrust violation and tortious interference with a business expectancy. In addition, the analysis of the claim for the unconstitutionality of the City's rates and fees involves factors that cannot be properly assessed on demurrer.