Viridis Development Corporation v. Board of Supervisors of Chesterfield County, Virginia et al, No. 3:2014cv00589 - Document 23 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 2/18/2015. (sbea, )
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Viridis Development Corporation v. Board of Supervisors of Chesterfield County, Virginia et al Doc. 23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION VIRDIS DEVELOPMENT CORPORATION, Plaintiff, v. BOARD OF SUPERVISORS OF CHESTERFIELF COUNTY, VIRGINIA, et al., Civil Action No. 3:14– CV– 589 Defendant. MEMORAN D U M OPIN ION THIS MATTER is before the Court on a Motion to Dism iss the Am ended Com plaint (“Motion”) filed by Defendants J am es Holland, Steve A. Elswick, Daniel A. Gecker, Dorothy J aeckle, Art Warren, the Board of Supervisors of the County of Chesterfield, Virginia, and the County of Chesterfield, Virginia (collectively, “Defendants”). ECF No. 15. Plaintiff Virdis Developm ent Corporation (“Plaintiff”) opposes the Motion. For the reasons below, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion. ECF No. 15. I. FACTU AL AN D PROCED U RAL BACKGROU N D a. Factual Background This is a 42 U.S.C. § 1983 action brought by Plaintiff against Defendants, alleging that the denial by the Board of Supervisors of the County of Chesterfield, Virginia (“Board of Supervisors”) of Plaintiff’s application to m odify its existing, approved zoning so as to allow developm ent of a 22-acre parcel of land in Chesterfield County (“Forest Ridge”) violated federal and state law. The Am ended Com plaint consists of two counts. Count I contends that the Board of Supervisors’ zoning decision violated the Takings Clause of the Fifth Am endm ent of the United States Constitution. Count II contends that the Board of Supervisors’ zoning decision, and its application of the Chesterfield County’s Cash Proffer Policy, violated Section 11 of Article Dockets.Justia.com I and Section 2 of Article VII of the Virginia Constitution as well as Va. Code § 15.2-2298. Plaintiff requested several alternative form s of relief: 1 (1) a declaratory judgm ent holding that “Defendants’ denial of [Plaintiff’s] request to am end its rezoning application for Forest Ridge by elim inating cash proffers constitutes an unconstitutional condition on the exercise of [Plaintiff’s] Fifth Am endm ent right to use of its property;” (2) a declaratory judgm ent holding that Defendants’ denial as well as the Cash Proffer Policy as applied to Plaintiff are ultra vires and unconstitutional under the Virginia Constitution; (3) com pensatory dam ages; (4) an Order enjoining the Board of Supervisors’ to grant Plaintiff’s application without the unconstitutional conditions; (5) such further relief as the Court deem s just and proper. The facts, in the light m ost favorable to Plaintiff, are as follows. Forest Ridge consists of approxim ately 22.6 acres located near Vickilee Road in Chesterfield County, which is in the general vicinity of the intersection of Courthouse Road and Powhite Parkway. Am ended Com plaint (“Am . Com pl.”) ¶ 10 ; see Defendants’ Mem orandum in Support of Motions to Dism iss Am ended Com plaint (“Defs.’ Mem .”) at 1. In 20 0 6, the Board of Supervisors approved the request of applicant J . Mark Sowers (“Sowers”) to rezone Forest Ridge from the Agricultural zoning classification to the Residential classification. Id. ¶¶ 20 , 25. As rezoned in 20 0 6, Forest Ridge could be developed as a 49 un it residential subdivision. Id. ¶¶ 14, 20 ; see also Defs.’ Mem . at 4. During the 20 0 6 rezoning of the property, Sowers proffered cash paym ents to address the im pact of its proposed developm ent on schools, parks and recreation, roads, libraries and fire stations.2 Also, the total cash proffer of $ 11,225.0 0 per dwelling unit would increase to $ 15,60 0 per dwelling unit if Sowers did not com plete certain drainage 1 Plaintiff requests the following: (1) declaratory relief pursuant to 28 U.S.C § 220 1; (2) dam ages and injunctive relief pursuant to 42 U.S.C. § 1983; and (3) dam ages, attorneys’ fees, and costs under Va. Code. § 15.2-220 8.1, enacted by the Virginia General Assem bly in 20 14. Am ended Com plaint (“Am . Com pl.”) at 13. 2 Those case paym ents offered by J . Mark Sowers (“Sowers”), and accepted by the Board of Supervisors, provided for a total paym ent of $ 11,225.0 0 per dwelling unit. The $ 11,225.0 0 paym ent was allocated across a num ber of capital facilities as follows: $ 3,836.0 0 for schools, $ 433.0 0 for parks and recreation, $ 6,415 for roads, $ 250 .0 0 for libraries, and $ 291.0 0 for fire stations. Am . Com pl. ¶ 25. 2 im provem ents that would affect storm water flooding of properties to the south. Id. ¶¶ 20 , 22. In 20 0 8, Plaintiff purchased Forest Ridge as zoned and subject Sowers’ previous cash proffers. Id. ¶¶ 10 , 14, 25. In 20 12, Plaintiff filed an application with Chesterfield County (“the County”) asking that the Board of Supervisors “approve an am endm ent to the zoning for an existing [49-lot single fam ily residential] project” related to Forest Ridge. Id. ¶ 3. Specifically, Plaintiff’s rezoning application sought to: (1) increase the density of its developm ent by one lot—that is, from 49 to 50 allowable lots—and (2) elim inate Sowers’ 20 0 6 cash proffers. Id. ¶ 26. While Plaintiff’s application was pending, the County had in effect a written Cash Proffer Policy, which sets forth a m ethodology for calculating the cost to the County of providing public facilities for each new residence in a proposed subdivision, including schools, roads, parks, libraries, and fire stations. Id. ¶ 16; id. Ex. 1 (“County Cash Proffer Policy”). The policy expressly provides that a zoning applicant is not required to m ake cash proffers in order to address the im pact of his developm ent, but that land or in-kind im provem ents m ay be proffered instead if the applicant chooses. Id. ¶¶ 16-18. Ultim ately, when considering a zoning (or rezoning) application, the Board considers health, safety, and welfare issues and m easures taken by the zoning applicant to address his im pacts on capital facilities. Id. ¶ 16; see Ex. 1 (“County Cash Proffer Policy”). If the in-kind proffers are accepted by the Board of Supervisors, it “is to give credit—equal to the value of the dedicated land or the costs of the public facility construction—against the potential m axim um cash paym ent.” Id. ¶ 18. Here, “in exchange for the elim ination of the cash paym ents, [Plaintiff] offered to (i) construct an off-site right hand turn lane on . . . Courthouse Road . . . and (ii) am end and then construct the existing plans to correct [a] storm drainage problem that was not caused by Forest Ridge.” Id. ¶ 26. After conducting its own study, Plaintiff’s findings dem onstrated that the only dem onstrable infrastructure im pacts to result from increasing the density of Forest Ridge and elim inating the 20 0 6 cash proffers were in the areas of transportation and environm ent. In 3 other words, Plaintiff found that there would not be an adverse im pact on any other public facilities including schools, parks and recreation, libraries and fire stations near the developm ent. Id. ¶¶ 28 -31. Thus, Plaintiff crafted its rezoning application with the findings from its study in m ind and, as a result, with respect to schools, parks, libraries, and fire stations, Plaintiff m ade no cash or in-kind proffer. After reviewing Plaintiff’s application, the County’s planning staff (“the staff”) recom m ended approval of the application as to Plaintiff’s offer to construct the right turn lane on Courthouse Road subject to the Board of Supervisors’ approving the rezoning application. The road im provem ents proffered by Plaintiff were accepted by the staff as satisfying the im pact of Plaintiff’s developm ent on public transportation facilities. Id. Ex. 3 (“Staff Report”) (“The applicant has proffered road im provem ents to m itigate the im pact of the developm ent on capital facilities, and staff finds the transportation proffer acceptable for m itigating road im pacts.”). However, in their report, the staff stated that drainage and erosion problem s would need to be addressed if additional density was perm itted by the Board of Supervisors. Id. On the other hand, after engaging in a lengthy analysis of how the proposed Forest Ridge developm ent of higher density would im pact the County infrastructure, the staff opposed Plaintiff’s request to com pletely elim inate the 20 0 6 cash proffers because the application did “not m itigate the im pacts of this developm ent [of Forest Ridge] on school, park, library, and fire station facilities, thereby not ensuring adequate service levels are m aintained and [not] protecting the health, safety, and welfare of County citizens.” Id. The staff’s report explicitly states that the basis for the staff’s recom m endation of denial as to the cash proffer elim ination was because Plaintiff’s “request falls short of adequately addressing the proposed developm ent’s im pact on school, park, library[,] and fires [sic] station facilities.” Id.3 3 Conditions that address the im pact of developm ent on public facilities cannot be im posed by the locality, but m ust be voluntarily proffered by the applicant for the locality to accept them as zoning conditions. Va. Code § 15.2-2298. Thus, when Plaintiff proposed to elim inate the 20 0 6 cash proffers 4 On J uly 23, 20 14, the Board of Supervisors held a public hearing, in which it voted to deny Plaintiff’s application because it “failed to address the project’s im pact on capital facilities.” Id ¶ 35. As additional grounds for its denial of Plaintiff’s request, the Board of Supervisors also explained that the project was not appropriate for infill developm ent and stressed that there were serious drainage issues which result from the proposed developm ent.4 According to Plaintiff, “the basis for denial was [Plaintiff’s] failure to accede to the dem and for the m axim um cash paym ent.” Id.¶ 35. Art Warren, a m em ber of the Board of Supervisors, explained in the hearing, am ong m uch other com m entary, that, under the County’s Cash Proffer Policy, a rezoning applicant can proffer, in lieu of cash, a m yriad of other ways of addressing the im pact of the proposed developm ent on public facilities and infrastructure. He stated that Plaintiff’s application focused only on the closest facilities to the developm ent and ignored the fact that each resident has a cum ulative im pact. Additionally, another supervisor, Dan Gecker, discussed his reservations about the proposed developm ent, citing m any of the issues raised by the staff in their report. So too did Supervisor J im Holland. The Board of Supervisors’ denial resulted even though Plaintiff addressed the im pacts of its developm ent in term s of building an off-site turn lane, which would benefit all com m unities in the neighborhood and rem edy flooding issues caused by inadequate storm drainage facilities. Id. b. Procedural Background On August 22, 20 14, Plaintiff filed its Com plaint in this Court. ECF No. 1. Defendants m oved to dism iss the Com plaint on Septem ber 18, 20 14. ECF No. 8. Although Plaintiff did not for schools, libraries, parks, and fire stations, the County could not propose alternative m eans to address the im pact on these facilities—only Plaintiff could do so. 4 See http:/ / chesterfieldva.granicus.com / MediaPlayer.php?view_ id=6&clip_ id=10 68. Plaintiff explicitly incorporated by reference into its Am ended Com plaint an internet link to the County’s website where the video of the entire Board of Supervisors’ public hearing on the Plaintiff’s rezoning application can be viewed. Am . Com pl. ¶ 35. Therefore, because Plaintiff relies on the video, it will be considered in its entirety by the Court. Fed. R. Evid. 10 6; see Phillips v. LCI Int’l, Inc., 190 F.3d 60 9, 618 (4th Cir. 1999) (stating that docum ents outside of the com plaint m ay be considered by the court upon a m otion to dism iss if “integral to and explicitly relied on in the com plaint”); United States v. Jam ar, 561 F.2d 110 3, 110 8 (4th Cir. 1977) (allowing contem poraneous introduction of written or recorded statem ents that place in context other writings or recorded statem ents adm itted into evidence which, viewed alone, m ay be m isleading). 5 file an Am ended Com plaint until Septem ber 29, 20 14, ECF No. 14, Defendan ts filed a m otion to dism iss the Am ended Com plaint on Septem ber 25, 20 14. ECF No. 11. Defendants filed the instant Motion on Septem ber 29, 20 14. ECF No. 15. On October 14, 20 14, Plaintiff filed its opposition. ECF No. 17. On October 20 , 20 14, Defendants filed a reply. ECF No. 18. II. STAN D ARD OF REVIEW a. Motion to Dism iss When a m ovant challenges the court’s subject m atter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the burden is on the plaintiff to establish, by a preponderance of the evidence, that there is such jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The court accepts all well-pleaded factual allegations as true, but is not obligated to accept a plaintiff's legal argum ents or conclusions. Glenn v. Lafon, 427 F. Supp.2d 675, 677 (W.D. Va. 20 0 6). The court m ay consider evidence outside the pleadings without converting the proceeding to one for sum m ary judgm ent. Evans, 166 F.3d at 647. Indeed, the court weighs the evidence to determ ine its jurisdiction. Adam s v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A m otion to dism iss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a com plaint, and “does not resolve contests surrounding the facts, the m erits of a claim , or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation om itted). A court ruling on a Rule 12(b)(6) m otion m ust take as true all of the plaintiff’s well-pleaded allegations and should view the com plaint in the light m ost favorable to the plaintiff. My lan Labs., Inc. v. Matkari, 7 F.3d 1130 , 1134 (4th Cir. 1993). The com plaint m ust contain “‘a short and plain statem ent of the claim showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The pleadings need not m ake “detailed factual allegations,” id., but they m ust allege sufficient facts, accepted as true, to “state a claim for relief that is plausible 6 on its face,” id. at 570 . The pleading standard of Rule 8 “dem ands m ore than an unadorned, the-defendant-unlawfully-harm ed-m e-accusation,” id. at 678, and “while a plaintiff is not required to plead facts that constitute a prim a facie case in order to survive a m otion to dism iss, ‘[f]actual allegations m ust be enough to raise a right to relief above the speculative level.’” Colem an v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 20 10 ) (quoting Tw om bly , 550 U.S. at 555 (internal citation om itted)). III. AN ALYSIS Defendants argue that, because the Fourth Circuit has concluded that a challenge to a local zoning decision has no place in federal court, even when dressed in constitutional garb, this Court should invoke the Burford v. Sun Oil Co. doctrine of abstention. 319 U.S. 315, 317-18 (1943) (holding that when tim ely and adequate state court review is available, federal court sitting in equity should abstain from review of cases involving difficult questions of state law or state's adm inistration of its own regulatory schem es). Say Defendants, the case at bar is nothing m ore than a local zoning dispute involving local and state concerns. Defendants further argue tha,t even if this local zoning dispute raises a claim under the Takings Clause of the Fifth Am endm ent to the United States Constitution under Koontz v. St. Johns River W ater Mgm t. Dist., 133 S. Ct. 2586 2594 (20 13), the case sub judice is not im m unized from the doctrine of Burford abstention. Plaintiff does not dispute the case law backdrop concerning zoning law and local land use decisions; it m erely contends that its particular zoning issues presented in this case are easily answered. Plaintiff claim s that the case at bar is not a classic Taking Clause case under the Fifth Am endm ent—that is, it is not an inverse condem nation case nor is it a case asserting a state-based claim wrapped in federal clothing. Plaintiff challenges the “nexus” or relationship of the proposed subdivision rezoning to the im pacts for which the cash proffers are purportedly used under the County’s Cash Proffer Policy an d argues that the im position of the m axim um cash proffer, together with other proffered conditions, is not roughly proportionate to the 7 im pacts of its proposed Forest Ridge developm ent. Second, as to the state law claim s, Plaintiff asserts that both Board of Supervisor’ denial of its application along with its Cash Proffer Policy as it was applied to Plaintiff constituted a violation the Virginia Constitution and Va. Code § 2298. “Abstention doctrines constitute ‘extraordinary and narrow exception[s]’ to a federal court’s duty to exercise the jurisdiction conferred on it.” Martin v. Stew art, 499 F.3d 360 , 363 (4th Cir. 20 0 7) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 70 6, 716, 728 (1996)). The Suprem e Court has identified several carefully delineated categories of cases where a federal court has discretion to abstain from exercising its jurisdiction. New Orleans Pub. Serv. Inc., v. Council of New Orleans, 491 U.S. 350 , 359 (1989) (“NOPSI”). Specifically, the doctrine of Burford abstention allows a federal court to refrain from interfering with com plex state regulatory schem es where state-court review is available if a case “[1] presents difficult questions of state law bearing on policy problem s of substantial public im port who im portance transcends the result then at bar, or [2] if its adjudication in a federal forum would be disruptive of state efforts to establish a coherent policy with respect to a m atter of substantial public concern.” Quackenbush, 517 U.S. at 726-27 (quoting N OPSI, 491 U.S. at 361). The Fourth Circuit has repeatedly held that cases involving questions of state land use and zoning law are “classic exam ple[s] of situations where Burford should apply,” and “federal courts should not leave their indelible print on local and state land use and zoning laws by entertaining these cases and . . . sitting as a zoning board of appeals.” MLC Autom otive, LLC v. Tow n of S. Pines, 532 F.3d 269, 282-83 (4th Cir. 20 0 8) (quoting Pom ponio v. Fauquier Cty . Bd. of Supervisors, 21 F.3d 1319, 1324 (4th Cir. 1994) (internal quotations om itted)). The Fourth Circuit has held that: [I]n cases in which plaintiffs’ federal claim s stem solely from construction of state and local land use or zoning law, not involving constitutional validity of the sam e and absent exceptional circum stance . . . the district courts should abstain under the Burford doctrine to avoid interference with a State’s or locality’s land use policy. 8 Id. (quoting Pom ponio, 21 F.3d at 1328). There is no specific form ula for applying Burford abstention; despite the doctrine’s “m any forks and prongs, [its] central idea has always been one of sim ple com ity.” Id. at 280 (quoting Johnson, 199 F.3d at 710 ). Burford abstention is appropriate when a plaintiff’s constitutional claim s are, at their core, issues of “state law in federal law clothing.” Id. at 282 (quoting Johnson, 199 F.3d at 721 (cataloging cases)). There can be no doubt: [v]irtually all [cases involving state or local zoning or land use laws], when stripped of the cloak of their federal constitutional claim s, are state law cases. The federal claim s are really state law claim s because it is either the zoning or land use decisions, decisional processes or laws that are the bases for the plaintiff’s federal claim s. Pom ponio, 21 F.2d at 1326; see also MLC Autom otive, 532 F.3d at 276 (finding that Burford abstention was appropriate where com plaint alleged violations of “federal and state substantive due process rights” and depended on a finding that the plaintiff had a vested right in the property as previously zoned). Accordingly, Burford abstention is appropriate when “federal claim s are entangled in the skein of state law that m ust be untangled before the federal case can proceed.” McNeese v. Bd. of Ed. for Cm ty . Unit Sch. Dist. 187, Cahokia, 373 U.S. 668, 674 (1963). This Court will abstain from deciding the case based on the Burford abstention doctrine. This case involves land use questions that are the particular concern of Chesterfield County (Local Governm ent) and the Com m onwealth of Virginia (State Governm ent). Indeed, there are difficult questions of state and local land use law present in this case and federal intervention could be disruptive of the Com m onwealth’s efforts to establish a coherent policy with respect to a m atter of public concern. See Quackenbush, 517 U.S. at 726-27 (finding that federal adjudication of the issues in that case “would be disruptive of state efforts to establish a coherent policy with respect to a m atter of substantial public concern”). As noted by the Fourth Circuit, “[f]ederal claim s that rest on allegations that a state agency or private actors violated state law can som etim es underm ine a state’s efforts to regulate uniform ly.” Martin v. Stew art, 499 F.3d 9 at 367. Stripped to its basic im port, the Am en ded Com plaint seeks to undo a zoning decision m ade by Chesterfield County under a proffer policy that has been upheld by the Fourth Circuit. See N OPSI, 92 F.3d at 1180 . Furtherm ore, abstention does not leave Plaintiff without a rem edy or avenue of redress. There is an extensive regulatory schem e that includes provisions for challenging zoning decisions and appealing the sam e. See Va. Code §§ 15.1-427 to 15.1-50 3.2; Meredith v. Talbot Cnty ., Md., 828 F.2d 228, 232 (4th Cir. 1987). (“The procedures, program s, statutes, regulations, planning boards, and officials involved in the subdivision approval process qualify zoning in . . . [the County of Chesterfield, Virginia] as being governed by a com plex state regulatory schem e.”). Therefore, the Virginia courts are clearly in a better position to understand local discretion in land use and zoning cases. IV. CON CLU SION Having decided that Burford abstention is appropriate, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dism iss the Am ended Com plaint. ECF No. 15. The Court DISMISSES the entirety of the Am ended Com plaint to the extent that it seeks declaratory and/ or injunctive relief and enters a STAY of the proceedings, until state proceedings are concluded, with respect to those claim s where relief sought by Plaintiff is in the nature of m onetary dam ages.5 This Court declines to exercise any pendent jurisdiction regarding the purely state law claim s appearing in Count II. See 28 U.S.C. § 1367. Also, because Plaintiff did not file its Am ended Com plaint until Septem ber 29, 20 14, ECF No. 14, Defendants’ two m otions to dism iss the am ended com plaint are DENIED AS MOOT, ECF Nos. 8, 11. Let the Clerk send a copy of this Order to Plaintiff and to all counsel of record. It is SO ORDERED. 5 While the Court m ay not dism iss actions for dam ages based on abstention principles, the Court m ay stay or postpone the adjudication of such actions. Quackenbush v. Allstate Ins. Co., 517 U.S. 70 6, 719– 721 (1996). 10 ____________________/s/_________________ James R. Spencer Senior U. S. District Judge ENTERED this _ 18th_ _ _ day of February 20 15 11
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