United States District Court, E.D. Virginia, Richmond Division
For Viridis Development Corporation, a Virginia corporation, Plaintiff: Wyatt B. Durrette, Jr., LEAD ATTORNEY, Bruce Edwin Arkema, Robert Rae Gordon, DurretteCrump PLC, Richmond, VA.
For Board of Supervisors of Chesterfield County, Virginia, James Holland, in his official capacity as Board Chairman and Supervisor only, Steve A. Elswick, in his official capacity as Board Vice Chairman and Supervisor only, Daniel A. Gecker, Dorothy Jaeckle, Art Warren, The County of Chesterfied, Virginia, in his official capacity as Supervisor only, in her official capacity as Supervisor only, in his official capacity as Supervisor only, Defendant: Jeffrey Lee Mincks, LEAD ATTORNEY, David Wayne Robinson, Chesterfield County Attorney's Office, Chesterfield, VA.
James R. Spencer, Senior United States District Judge.
THIS MATTER is before the Court on a Motion to Dismiss the Amended Complaint (" Motion" ) filed by Defendants James Holland, Steve A. Elswick, Daniel A. Gecker, Dorothy Jaeckle, 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 Development Corporation (" Plaintiff" ) opposes the Motion. For the reasons below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion. ECF No. 15.
I. FACTUAL AND PROCEDURAL BACKGROUND
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 modify its existing, approved zoning so as to allow development of a 22-acre parcel of land in Chesterfield County (" Forest Ridge" ) violated federal and state law. The Amended Complaint consists of two counts. Count I contends that the Board of Supervisors' zoning decision violated the Takings Clause of the Fifth Amendment 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 I and Section 2 of Article VII of the Virginia Constitution as well as Va. Code § 15.2-2298. Plaintiff requested several alternative forms of relief: (1) a declaratory judgment holding that " Defendants' denial of [Plaintiff's] request to amend its rezoning application for Forest Ridge by eliminating cash proffers constitutes an unconstitutional condition on the exercise of [Plaintiff's] Fifth Amendment right to use of its property; " (2) a declaratory judgment 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) compensatory damages; (4) an Order enjoining the Board of Supervisors' to grant Plaintiff's application without the unconstitutional conditions; (5) such further relief as the Court deems just and
proper. The facts, in the light most favorable to Plaintiff, are as follows.
Forest Ridge consists of approximately 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. Amended Complaint (" Am. Compl." ) ¶ 10; see Defendants' Memorandum in Support of Motions to Dismiss Amended Complaint (" Defs.' Mem." ) at 1. In 2006, 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 2006, Forest Ridge could be developed as a 49 unit residential subdivision. Id. ¶ ¶ 14, 20; see also Defs.' Mem. at 4. During the 2006 rezoning of the property, Sowers proffered cash payments to address the impact of its proposed development on schools, parks and recreation, roads, libraries and fire stations. Also, the total cash proffer of $11,225.00 per dwelling unit would increase to $15,600 per dwelling unit if Sowers did not complete certain drainage improvements that would affect storm water flooding of properties to the south. Id. ¶ ¶ 20, 22. In 2008, Plaintiff purchased Forest Ridge as zoned and subject Sowers' previous cash proffers. Id. ¶ ¶ 10, 14, 25.
In 2012, Plaintiff filed an application with Chesterfield County (" the County" ) asking that the Board of Supervisors " approve an amendment to the zoning for an existing [49-lot single family residential] project" related to Forest Ridge. Id. ¶ 3. Specifically, Plaintiff's rezoning application sought to: (1) increase the density of its development by one lot--that is, from 49 to 50 allowable lots--and (2) eliminate Sowers' 2006 cash proffers. Id. ¶ 26.
While Plaintiff's application was pending, the County had in effect a written Cash Proffer Policy, which sets forth a methodology 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 make cash proffers in order to address the impact of his development, but that land or in-kind improvements may be proffered instead if the applicant chooses. Id. ¶ ¶ 16-18. Ultimately, when considering a zoning (or rezoning) application, the Board considers health, safety, and welfare issues and measures taken by the zoning applicant to address his impacts 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 maximum cash payment." Id. ¶ 18.
Here, " in exchange for the elimination of the cash payments, [Plaintiff] offered to (i) construct an off-site right hand turn lane on . . . Courthouse Road . . . and (ii) amend 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 demonstrated that the only demonstrable infrastructure impacts to result from increasing the density of Forest Ridge and eliminating the 2006
cash proffers were in the areas of transportation and environment. In other words, Plaintiff found that there would not be an adverse impact on any other public facilities including schools, parks and recreation, libraries and fire stations near the development. Id. ¶ ¶ 28-31. Thus, Plaintiff crafted its rezoning application with the findings from its study in mind and, as a result, ...