Hartley v. Bd. of Supervisors of Brunswick Cty.

897 S.E.2d 217

80 Va.App. 1

Anne Edwards HARTLEY, et al.

v.BOARD OF SUPERVISORS OF BRUNSWICK COUNTY, Virginia

Record No. 1298-22-2

Court of Appeals of Virginia, Richmond.

February 13, 2024

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY, W. Allan Sharrett, Judge¹

John M. Janson, South Hill, for appellants.

Andrew R. McRoberts, Richmond (Christopher M. Mackenzie, Richmond; Paul C. Jacobson; Sands Anderson PC, on brief), for appellee.

Present: Judges AtLee, Ortiz and Lorish

OPINION BY JUDGE DANIEL E. ORTIZ

₉Appellants Anne Hartley and the Prospect Cemetery Association (collectively, "Hartley") seek to reverse the decision of the Brunswick County Board of Supervisors rezoning a neighboring property from agricultural to business use to allow the development of a Dollar General store. The circuit court dismissed several of Hartley’s claims on demurrer and granted the Board’s motion for summary judgment as to the rest. On appeal, Hartley raises three categories of claims: (1) that the circuit court erred in granting summary judgment because ₁₀the Board’s decision to upzone the property was not "fairly debatable," (2) that the" circuit court erred in denying Hartley a continuance to allow further time for briefing on summary judgment and to allow further discovery before ending the case on the merits, arid (3) that the circuit court erred in partially granting the Board’s demurrer. Because the Board adduced "some evidence of reasonableness" to support the decision to upzone the property, we must defer to the Board’s legislative judgment, and thus we affirm the judgment of the circuit court on all counts.

Background²

On October 7, 2019, Par 5 Development Group, LLC filed a land use application ("upzoning application") in Brunswick County, seeking an amendment to the Brunswick County zoning ordinance that would re-classify 2.04 acres of land ("Dollar General property") from A-1 agricultural ("A-1") to B-1 business ("B-1") use. Par 5 sought to develop a 9,100-sguare-foot Dollar General retail store on a segment of an existing 8.36-acre parcel of land in the town of Ebony. The Dollar General property has not been subdivided from the full parcel. The upzoning application noted that infrastructure for the building, including access roads, water, and sewer facilities, would be privately constructed.

Ebony is a small, rural community that is primarily zoned as A-1 based on the Brunswick County Comprehensive Plan 2037. The plan lays out the County’s vision to "be a regional leader in small business develop- ment, progressive industry, livable neighborhoods, sustainable agriculture, and extraordinary tourism experiences." The County also aims to "be a destination for specialized commerce and employment with thriving business parks and downtown business districts in [designated towns]." It hopes to create an "inviting community₁₁" for people who "cherish the community’s heritage and history, friendly atmosphere, comfortable lifestyles, exceptional education system, scenic landscapes, prized agricultural soils, and outstanding parks, trails, rivers and lakes." The plan, running longer than one hundred pages, is organized wound four directives: (1) resilient communities; (2) dynamic economic growth; (3) preserved natural and cultural heritage; and (4) managed land use and development.

The comprehensive plan mentions Ebony only a few times: to describe the fire department, note the presence of a century farm, and highlight comments from Ebony citizens about light pollution, The plan groups Ebony with Gasburg and Lake Gaston as part of the "South County Planning Area," a "general growth area[ ]" that "continue[s] to represent good direction for land development in the future." On the current and future uses map, Ebony appears in an agricultural area, though the exiting uses map reflects a few business zones at the heart of Ebony. On the future uses map, nearby Gasburg is designated for "[c]ommunity [b]usiness" uses, described as "small business development in key crossroad locations to serve the surrounding community … in existing commercial buildings or in new buildings of 5,000 square feet or less." Gasburg is also marked as a "[c]orridor [b]usiness [opportunity," which "may include grocery stores, lodging, convenience/gas stations," and similar commercial uses.

The Dollar General property is located at a three-way intersection neighboring Hartley’s 69-acre property, a historic family farm and organic farming operation. Prospect Cemetery Association, the other appellant here, oversees the Prospect Cemetery, which neighbors the Dollar General property to the south. The local area includes two local general stores—Ebony General and the 903 Race-In—Homestead Antiques, the Ebony Fire Department, the Ebony Post Office, Carroll Family Logging, and several historic homes.³ About four acres ₁₂of Hartley’s property were also upzoned to B-1 in 2003 for use in a small electric boat business that never materialized, and remain zoned as B-1.⁴

In November 2019, the Brunswick County Planning Commission held a public hearing on the upzoning application. Planning Commission staff recommended that the Planning Commission approve the upzoning if it found the rezoning to be in accord with the comprehensive plan. After sixteen individuals spoke in opposition to the upzoning request, and two spoke in favor, a commissioner moved to deny the upzoning application, but the vote was deferred pending Virginia Department of Transportation ("VDOT") approval of the application. Soon thereafter, VDOT issued a letter stating that it had completed its necessary review and that the site proposal complied with regulations. The Planning Commission held a second hearing in December 2019, during which it approved the upzoning application in an 8-1 vote, referring the issue to the Board.

In January 2020, the Board—appellee here—held a hearing on the upzoning application. The Board received letters and signed petitions both favoring and opposing the upzoning decision. Public submissions worried about the Dollar General’s visual blight, misalignment with the agricultural setting, bright lighting, increased traffic, negative effect on tourism, and possible economic impact on existing businesses. Hartley’s complaint alleges that the Board failed to properly consider traffic safety around the Dollar General property,⁵ The Board ₁₃also received a letter from Par 5 outlining the likely economic benefits of the new Dollar General store. Following public. comments, the Board voted 3-2 to approve the upzoning application ("the upzoning decision").

Hartley appealed the upzoning decision to the circuit court on February 28, 2020. Following a circuit court ruling sustaining the Board’s demurrer and dismissing the complaint, Hartley filed an amended complaint, to which the Board filed a second demurrer and a motion craving oyer of the entire legislative record before the Board.⁶ The circuit court partially sustained that demurrer, finding that Hartley’s allegations on several grounds could not support her claim that the Board’s upzoning decision was arbitrary and capricious.⁷ The court denied the demurrer as to Hartley’s claims that the upzoning decision was arbitrary and capricious based on her allegations that (1) the decision failed to align with the comprehensive plan and (2) the Board failed to consider the factors listed in Code §§ 15.2-2283 and -2284.

[1, 2] In early 2022, both parties filed praecipes stating that the matter had matured for trial. The Board filed a notice of hearing on March 15, 2022, requesting that a pretrial conference and hearing on a summary judgment motion, which had not yet been filed, be set for June 3, 2022. The Board then moved for summary judgment on May 12, 2022. Hartley filed a motion for a stay of summary judgment proceedings and a motion for an order sequencing discovery on May 23, 2022. On June 3, 2022, the circuit court held a hearing on the motion for ₁₄summary judgment.⁸ Following the hearing, both parties submitted briefs on the motion. The circuit court granted the Board’s motion for summary judgment in a final order dated August 18, 2022. Hartley appeals.

Analysis

I. Reasonableness of the Upzoning Decision

[3] Hartley first challenges the circuit court’s grant of summary judgment for the Board, arguing that the upzoning decision was invalid for failure to follow statutory zoning procedures and substantively unreasonable. In evaluating a motion for summary judgment, a court may review only "the pleadings, the orders, if any, made at a pretrial conference, [and] the admissions, if any, in the proceedings." Rule 3:20. Summary judgment is not appropriate if "any material fact is ₁₅genuinely in dispute." Id. On appeal, "we review the record applying the same standard the trial court must adopt in reviewing a motion for summary judgment, accepting as true ‘those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason.’ " Klaiber v. Freemason Assocs., Inc., 266 Va. 478, 484, 587 S.E.2d 555 (2003) (quoting Dudas v. Glenwood Golf Club, Inc., 261 Va. 133, 136, 540 S.E.2d 129 (2001)).

[4–10] Legislative actions, such as the grant or denial of an application for rezoning, are presumed to be reasonable both upon review before the circuit court and upon appeal. See Bd. of Supervisors v. Lerner, 221 Va. 30, 34, 267 S.E.2d 100 (1980). Reasonableness, in turn, depends on whether "the matter in issue is fairly debatable"—whether objective and reasonable people may logically arrive at different conclusions about the correct result. Bd. of Supervisors v. Robertson, 266 Va. 525, 532, 587 S.E.2d 570 (2003) (quoting Lerner, 221 Va. at 34, 267 S.E.2d 100). The Supreme Court has summarized this reasonableness standard in a burden-shifting framework:

Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of

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