Loch Levan Land Ltd. v. Bd. of Supervisors of Henrico Cnty.

831 S.E.2d 690

LOCH LEVAN LAND LIMITED PARTNERSHIP, et al.

v.BOARD OF SUPERVISORS OF HENRICO COUNTY, et al.

Record No. 181043

Supreme Court of Virginia, Supreme Court of Virginia.

August 22, 2019

Joseph R. Pope (T. Preston Lloyd, Jr., Richmond; Williams Mullen, on briefs), for appellants.

J.T. Tokarz, Deputy County Attorney (Joseph P. Rapisarda, Jr., County Attorney; John D. Gilbody, Assistant County Attorney, on brief), for appellees.

Amici Curiae: The Home Builders Association of Virginia, Inc. and The Virginia Association of Realtors, Inc. (John H. Foote, Woodbridge; Matthew A. Westover, Winchester; Walsh, Colucci, Lubeley & Walsh, on brief), in support of appellants.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

Dominion Club Drive is a significant "spine" road that runs through the Wyndham development in Henrico County. HHHunt¹ wishes to extend this road into Hanover County so that it might more profitably develop its properties in Hanover County. Henrico County (the "County") and residents of Wyndham, fearing worsening traffic, opposed extending the road. The County Board of Supervisors removed a portion of Dominion Club Drive from the County’s Major Thoroughfare Plan, and later voted to abandon a portion of that road pursuant to the abandonment provisions found in Title 33.2 of the Code. These steps now preclude HHHunt from extending the road into Hanover County.

HHHunt filed suit to challenge these actions. Following a four-day trial, the circuit court ruled in favor of the County. HHHunt appeals, contending that the court below erred in concluding that: (1) HHHunt did not have a vested right to the continuation of Dominion Club Drive under Code § 15.2-2261 ; (2) HHHunt did not possess constitutionally guaranteed vested rights in the continuation of Dominion Club Drive; (3) the County could rely on the abandonment provisions of Title 33.2 to eliminate the extension of Dominion Club Drive; (4) the abandonment was a legislative act subject to the fairly-debatable standard; and (5) the abandonment of the right of way was for a proper public purpose. HHHunt also asserts that the circuit court erred in finding that public opposition alone is a legitimate basis for sustaining the abandonment of HHHunt’s right of way. For the reasons noted below, we affirm the judgment of the circuit court in all respects.

BACKGROUND

In 1989, the Henrico County Board of Supervisors ("the Board") rezoned 1,089 acres for a large master-planned community named Wyndham. From the outset, the plan for Wyndham included construction of Dominion Club Drive, a "spine" or collector road which connected Wyndham Park Drive north to the Chickahominy River. The Chickahominy River forms the boundary between Henrico and Hanover Counties. Since 1991, Dominion Club Drive has been depicted on Henrico County’s Major Thoroughfare Plan as running through Wyndham and ending at the Hanover County line.

At the time of the 1989 rezoning, HHHunt owned several non-contiguous parcels in Hanover County. The plans for Wyndham showed Dominion Club Drive going to Hanover but did not show any particular development in Hanover. As the circuit court later found, "future development in Hanover County was foreseen but the scope was unknown." From 1989 onward, HHHunt continued to assemble parcels of land in Hanover County with a view to consolidating them and developing them. Following the Board’s rezoning in 1989, HHHunt divided the 1,089 acres into 2,400 lots. HHHunt posted a separate bond for the completion of Dominion Club Drive to the Chickahominy in 1992, increased that bond in 2004, renewed it in 2015, and again in 2017.

In 1991, the County agreed to a proposal by HHHunt to divide "the portion identified as Phase 1-C" of Dominion Club Drive into two sections. HHHunt made this request to avoid "spend[ing] money until we are going to absolutely use that infrastructure." The County’s Planning Department agreed to the proposal, on the condition that "[t]he final portion of Dominion Club Drive must be completed with the development of the property on the west side of this road section, or earlier should circumstances warrant. (completion of the Hanover County portion of the road)." The "property on the west side of this road section" later became the Manor Park subdivision of Wyndham.

On August 6, 1991, the County approved the plat for another subdivision of Wyndham, Wexford. Wexford adjoins the eastern boundary of Dominion Club Drive and the floodplain bordering Hanover. HHHunt recorded the plat. Id. On the same day that HHHunt recorded the Wexford plat, HHHunt also recorded a plat for the Wyndham Collector Roads Phase 1C – Section 1. The 1C-1 plat "provides the access to both Wexford and to Manor Park." The 1C-1 plat does not run to the Hanover County line.

When HHHunt recorded the Wexford subdivision plat, it did not dedicate the right-of-way for all of Phase 1-C of Dominion Club Drive to the Henrico County line. Instead, the plat shows that HHHunt reserved the right-of-way for Section 2 of Phase 1-C for "future development." By making this reservation, rather than a dedication, HHHunt avoided the cost of building Section 2 of Phase 1-C as part of the Wexford subdivision.

In 1992, the County approved the plat for the Manor Park subdivision. Manor Park adjoins the western boundary of Dominion Club Drive and the floodplain bordering Hanover. HHHunt recorded the plat for Manor Park. On the same day, HHHunt also recorded the plat for Wyndham Collector Roads Phase 1C – Section 2. As with the 1C-1 plat, the 1C-2 plat only dedicated a right-of-way, but did not subdivide property into lots. The right-of-way on the 1C-2 plat runs from north of Isleworth Drive to the Henrico County line.

HHHunt built the 1C-1 road section. Henrico County accepted it into its road system in August 1992. HHHunt had final plat approval from Henrico and Hanover Counties to connect Dominion Club Drive across the Chickahominy River by completing the portion of Dominion Club Drive shown on the 1C-2 plat. An HHHunt engineer testified that, prior to the abandonment of a portion of Dominion Club Drive, "HHHunt has been at liberty to construct 1-C-2 at any time." Nevertheless, HHHunt never submitted plans to construct the 1C-2 section all the way to the Henrico County line, to cross the Chickahominy River, or to build a connecting road in Hanover. Instead, HHHunt did some clearing and grading, placed a layer of stone on part of the 1C-2 section, and erected a barrier at the end of the 1C-1 section to prevent the public from using the 1C-2 right-of-way. The public cannot travel over the 1C-2 right-of-way. In 1996, HHHunt asked Henrico to release the bond that guaranteed completion of the 1C-2 section. HHHunt explained that "[t]his project has been postponed indefinitely." In 2012, Hanover County made Dominion Club Drive part of its Major Thoroughfare Plan.

In 2016, HHHunt filed a rezoning application with Hanover County for its properties in that County. Alarmed at the prospect of increased traffic flowing in from Hanover County, Wyndham residents became vocal in their opposition to extension of Dominion Club Drive into Hanover. On November 9, 2016, the Board voted to remove the incomplete portion of Dominion Club Drive from the Major Thoroughfare Plan. On February 28, 2017, the Board conducted a hearing to determine whether the County should abandon the unbuilt, barricaded portion of Section 1 of Phase 1-C of Dominion Club Drive. The County’s Director of Public Works explained why there was no public necessity to continue this portion of Dominion Club Drive and why its abandonment would be best served by abandoning this section of road. The Board voted to abandon it.

HHHunt filed a complaint challenging the Board’s November 2016 action to remove a portion of Dominion Club Drive from the County’s Major Thoroughfare Plan. HHHunt later filed a separate complaint challenging the Board’s February 2017 decision to abandon the portion of Dominion Club Drive that is currently a dead-end. Both cases were consolidated for trial. Following a four-day trial, the circuit court ruled in favor of the Board.

The circuit court concluded that Code § 15.2-2261(C) controlled rather than Code § 15.2-2261(F). Consequently, the court found that HHHunt’s statutory right to fully build Dominion Club Drive was limited to five years. The circuit court also rejected HHHunt’s claim of a constitutionally vested right to build a road. The court held that, under Virginia law, "a landowner may have a constitutional vested property right in the use of its land provided [it] diligently pursues a permitted use." The court concluded, however, that HHHunt’s claim failed because "the 25-year gap between the road dedication and the board’s action does not evidence diligent pursuit." The court held that "[n]o public necessity or public welfare consideration will be served by maintaining the short section of road at issue." Finally, the court found that the Board’s decision to abandon the unbuilt segment of Dominion Club Drive was not arbitrary or capricious. This appeal followed.

ANALYSIS

I. Code § 15.2-2261(C) is the controlling statute and it provided HHHunt five years to complete construction of Dominion Club Drive.

HHHunt argues that the circuit court erred in its interpretation of Code § 15.2-2261, and that a proper reading of the statute establishes its right in perpetuity to develop all of Dominion Club Drive. On appeal, we review a trial court’s statutory interpretation de novo. Mercer v. MacKinnon , 297 Va. 157, 162, 823 S.E.2d 252 (2019).

Two related statutes govern our disposition of this issue. Code § 15.2-2261(C) provides that

For so long as the final site plan remains valid in accordance with the provisions of this section, or in the case of a recorded plat for five years after approval , no change or amendment to any local ordinance, map, resolution, rule, regulation, policy or plan adopted subsequent to the date of

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