EMAC, L.L.C. v. County of Hanover , 291 Va. 13 ( 2016 )

PRESENT: All the Justices
EMAC, L.L.C.
OPINION BY
v. Record No. 150335 JUSTICE S. BERNARD GOODWYN
January 14, 2016
COUNTY OF HANOVER, ET AL.
FROM THE CIRCUIT COURT OF HANOVER COUNTY
J. Overton Harris, Judge
In this appeal, we consider whether the circuit court erred in granting a demurrer to a
claim alleging impermissible discrimination in the denial of a request for an extension of a
conditional use permit (CUP).
BACKGROUND
EMAC, L.L.C. (EMAC) filed an action for declaratory judgment, damages and attorney’s
fees against the County of Hanover (the County) and the Board of Supervisors of the County of
Hanover (the Board). The action was an appeal and a challenge of the Board’s decision to deny
EMAC’s application for an extension of a CUP. The County and the Board (collectively
“defendants”) filed a demurrer and motion to dismiss. The circuit court granted the defendants’
demurrer and motion to dismiss. EMAC appeals.
Northlake Park is the site of a new mixed use development in Hanover County.
Dominion Land and Development Corporation (Dominion Land) and/or Northlake Land
Investments, LLC (Northlake) own or owned many of the properties at Northlake Park.
According to EMAC, the two entities hold themselves out as being the developer of Northlake
Park. In 2013, Craig Realty Group (Craig Realty) expressed interest in developing an outlet
mall, designated as the “Outlets at Richmond,” in Northlake Park. EMAC alleges in its amended
complaint that Craig Realty has convinced County officials and employees that Craig Realty’s
proposed outlet mall will fulfill the County’s goal of having a retail shopping center that
generates millions of dollars of revenue for the County. EMAC claims upon information and
belief that Dominion Land and Northlake agreed to assist Craig Realty in any way possible so
that it could obtain the appropriate County approvals to facilitate development of the outlet mall.
To that end, in May 2012, Dominion Land and Northlake submitted a CUP application in
anticipation of Craig Realty purchasing land from them to develop an outlet mall. The
“Owner/Applicant” listed on the application was Dominion Land and Northlake. The CUP
application was for two destination commerce signs to be located within the Northlake Park
development, along Interstate 95 frontage with a minimum separation of 3,000 feet between
signs. The signs would permanently state at their top “Outlets at Richmond” and below have an
LED screen which could display advertisements on both sides. Describing why the proposed use
was desirable and appropriate, the applicants stated, “[t]he requested conditional use for two
destination commerce signs is desirable and appropriate for our development located within a
destination commerce area as shown on the General Land Use Plan in Hanover County.” They
stated that the signs were “desired to attract outlet center tenants and other destination retailers to
the development by providing highly visible site identification for I-95 traffic not familiar with
the area.”
One of the proposed signs, the northernmost sign (northern sign), was to be on land
owned by Northlake. The other sign (southern sign) was to be on property owned by EMAC.
Attached to the application was a non-binding letter of intent signed by the president of Craig
Realty and the manager of EMAC that described the terms of a proposed sale from EMAC to
Craig Realty of the land on which the southern sign was to be located.
2
On July 25, 2012, the Board approved CUP-2-12, which allowed the two signs to be
constructed on the locations described in the maps attached to the application. The Board
imposed several conditions that had to be satisfied before the signs could be built or used. CUP-
2-12 required the signs to substantially conform to the appearance of the graphical renditions
attached to the application. Moreover, the Board required that the site plan for either sign could
not be approved until after the submission and approval of a master sketch plan showing all
parcels and the total acreage included in the development. Additionally, construction of the
signs could not begin until building permits were issued for the outlet mall, and the signs could
not be used to advertise the outlet mall until after the approval of the first framing inspection of
the outlet mall. CUP-2-12 stated that it would expire after one year if no substantial construction
or change of use had taken place consistent with what CUP-2-12 was approved to accomplish.
On June 4, 2013, Dominion Land requested a one-year extension of CUP-2-12 to prevent
the CUP from lapsing before Craig Realty could acquire the building permits for the outlet mall.
The Board approved an extension for one year for both signs on July 24, 2013.
While Northlake owned and continues to own the site for the proposed northern sign,
EMAC, the owner of McGeorge Rolling Hills RV, a recreational vehicle dealer, was and remains
the owner of the site of the proposed southern sign. EMAC and Craig Realty have been unable
to agree upon the sale of that property to Craig Realty.
On February 27, 2014, EMAC asked the Board for another extension of CUP-2-12 for the
southern sign. On May 8, 2014, Northlake requested an extension of CUP-2-12 for the northern
sign. No construction or change of use, consistent with what CUP 2-12 was approved to
accomplish, had taken place as of May 2014.
3
On May 5, 2014, Craig Realty filed a request for a new CUP, CUP-4-14, to relocate the
proposed southern sign to the same parcel of property as the outlet mall. The cover letter to the
application for CUP-4-14 stated that Northlake had agreed to enter “a perpetual easement
agreement” with Craig Realty to give Craig Realty “access, construction, and ongoing
maintenance” of the northern sign under CUP-2-12, but that Craig Realty had been unable to
purchase the land for the southern sign from EMAC. It said that the application for CUP-4-14
was submitted to allow for building of a southern sign in a different location. The application for
CUP-4-14 stated, “[t]he requested relocation of one of the signs will allow the Outlet Center
management unfettered access to the sign for its continuous operation, maintenance and use by
the OC tenants and business w/in Northlake’s Dest. Comm.” It added that CUP-4-14 would
“allow[ ] management to run tenant’s ever changing advertising programs and OC promotions to
drive the success of the center.”
After the Board approved Northlake’s request to extend CUP-2-12 for the northern sign
but denied EMAC’s request to extend CUP-2-12 for the southern sign, EMAC filed a complaint
and later an amended complaint in the Circuit Court of Hanover County against the defendants.
EMAC alleged that the Board’s refusal to grant EMAC’s request for an extension of CUP-2-12
for the southern sign was arbitrary and capricious. It argued that the County had discriminated
against it in favor of Northlake, a similarly situated landowner, and that its “decision was not
related to the public health, safety, morals, or general welfare.” EMAC acknowledged that,
unlike Northlake, it did not have an agreement with the outlet mall developer, Craig Realty, for
Craig Realty to operate the sign on its property, but it argued that having such an agreement was
not a condition of CUP-2-12 or Hanover County’s sign ordinance. It asserted that the outlet mall
signs were “highly profitable and can generate in excess of four hundred thousand dollars per
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year.” EMAC requested damages of $6,900,000 plus attorney fees, expert witness fees and
costs.
EMAC attached several exhibits to its amended complaint that had been made exhibits to
the original complaint by a consent order in which the parties agreed to grant a motion craving
oyer filed by defendants. The exhibits included CUP-2-12; the application for CUP-2-12 with
accompanying documents showing the proposed locations and renditions of the proposed signs;
the June 4, 2013 application for an extension of CUP-2-12; and the application and cover letter
for CUP-4-14.
Defendants filed a demurrer and motion to dismiss the amended complaint. 1 They
argued that the facts alleged in the amended complaint and the information contained in the
exhibits showed that the Board’s decision to deny EMAC an extension for the southern sign was
not arbitrary and capricious and was at least fairly debatable. The defendants asserted that only
Northlake and Craig Realty working together could comply with the conditions of CUP-2-12.
Defendants claimed that the Board originally approved CUP-2-12 with the intention that the
signs would promote the development of Northlake Park and that the outlet mall developer
would control the signs.
The circuit court sustained the demurrer and motion to dismiss and issued a letter
opinion. Upon consideration of the allegations in the amended complaint and the documents
made exhibits pursuant to the joint consent order on defendants’ motion craving oyer, the circuit
court ruled that EMAC was required to prove that the existing zoning ordinance was
unreasonable as applied to its property, and that it failed to allege any facts to satisfy this
requirement. It noted that the continued success of the recreational vehicle dealership on
1
The County previously filed a demurrer and motion to dismiss the original complaint.
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EMAC’s property showed that the current zoning ordinance was reasonable. Further, the circuit
court held that even if EMAC had properly alleged that the current zoning was unreasonable, the
record was sufficient to show that the Board’s decision denying EMAC’s extension request was
supported by a rational basis and was fairly debatable. The circuit court ruled that EMAC’s
compliance with CUP-2-12’s conditions was not feasible, and that the conditions necessary for
the signs to be constructed would best be satisfied by Northlake and Craig Realty working
together. Further, the court noted that EMAC and Craig Realty had developed an adverse
relationship that made collaboration between the two unlikely. Finally, the court found that the
Board intended for the outlet mall developer to control both signs when it issued CUP-2-12, and
that there were potential benefits to Hanover County of having the outlet mall developer control
the signs. The court dismissed EMAC’s complaint with prejudice.
ANALYSIS
EMAC argues that the circuit court erred when it sustained the demurrer and motion to
dismiss based upon the grounds that EMAC did not allege that the existing zoning ordinance was
unreasonable without a CUP permitting a destination commerce sign on its property. It also
claims that the circuit court erred by applying the fairly debatable standard in a zoning
discrimination case. Moreover, it also contends that even if the court rightfully applied the fairly
debatable standard, it did not properly interpret the allegations in the amended complaint and the
exhibits attached to it, and there were insufficient grounds in the amended complaint and exhibits
to establish that the Board’s decision was fairly debatable.
We review whether the circuit court properly granted defendants’ demurrer de novo.
Squire v. Virginia Hous. Dev. Auth., 287 Va. 507, 514, 758 S.E.2d 55, 59 (2014). When ruling
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on a demurrer, a trial court accepts all facts properly pled and any reasonable inferences from
those facts as true and decides whether the allegations present a valid cause of action. Id.
We have held that documents brought into a case as a result of a motion craving oyer are
incorporated into the pleadings and may be used to “amplif[y]” the facts alleged in a complaint
when a court decides whether to sustain or overrule a demurrer. Dodge v. Trustees of Randolph-
Macon Woman’s College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008); Ward’s Equip. v. New
Holland N. Am., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997); Jarrett v. Jarrett, 34 Va. (7
Leigh) 93, 97 (1836); Wood v. Commonwealth, 25 Va. (4 Rand.) 329, 330 (1826); see also Kent
Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.6, at 739-40 (6th ed. 2014).
Furthermore, “a court considering a demurrer may ignore a party’s factual allegations
contradicted by the terms of authentic, unambiguous documents that properly are a part of the
pleadings.” Schaecher v. Bouffault, 290 Va. 83, 107, 772 S.E.2d 589, 602 (2015); Ward’s
Equip., 254 Va. at 382-83, 493 S.E.2d at 518.
Here, the parties entered a consent order granting oyer and the circuit court properly
considered the documents that were added as exhibits pursuant to the grant of oyer. 2 Thus, in
ruling upon defendants’ demurrer and motion to dismiss, the court was able to consider not only
the allegations in the amended complaint, but also the application for CUP-2-12 with
accompanying maps showing the proposed locations for the signs and renditions of the proposed
signs, the letter acknowledging the Board’s approval of CUP 2-12 and providing the conditions
2
The exhibits were added to the record as a result of a motion craving oyer regarding the
original complaint. When EMAC was granted leave to file an amended complaint adding two
additional counts to the complaint, the exhibits were attached to the amended complaint and
considered by the circuit court without objection as having been added and incorporated into the
amended complaint as the result of the consent order granting oyer.
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of that approval, the June 4, 2013 application for an extension of CUP-2-12 and the application
and cover letter for CUP-4-14.
The decision of a locality on a CUP is presumed valid and will not be altered by a court
absent “clear proof that the action is unreasonable, arbitrary, and bears no reasonable relation to
the public health, safety, morals, or general welfare.” City Council of Virginia Beach v. Harrell,
236 Va. 99, 101-02, 372 S.E.2d 139, 141 (1988); City of Richmond v. Randall, 215 Va. 506,
511, 211 S.E.2d 56, 60 (1975) (noting that the standards of judicial review for zoning enactments
also apply to decisions on an application for a CUP). If a challenging party presents probative
evidence of unreasonableness, the locality must present sufficient evidence to show that the
reasonableness of the decision is “fairly debatable” in order to have the locality’s decision upheld
in court. Harrell, 236 Va. at 102, 372 S.E.2d at 141 (citation and internal quotation marks
omitted). “An issue is said to be fairly debatable when the evidence offered in support of the
opposing views would lead objective and reasonable persons to reach different conclusions.”
Board of Supervisors v. McDonald’s Corp., 261 Va. 583, 590, 544 S.E.2d 334, 339 (2001)
(citation and internal quotation marks omitted).
Relying on our decisions in Harrell, 236 Va. at 102, 372 S.E.2d at 141, and Board of
Supervisors v. International Funeral Services, Inc., 221 Va. 840, 275 S.E.2d 586 (1981), the
circuit court held that a landowner challenging the denial of a CUP must prove that the denial
was unreasonable by showing not only that the requested use is reasonable, but also that the
existing zoning ordinance is unreasonable as applied to his, her or its land. The circuit court thus
found that because EMAC did not allege that the existing ordinance was unreasonable as to its
property, it did not make a valid claim. EMAC argues that the circuit court erred in applying that
standard in this instance, because EMAC alleges impermissible discrimination as the basis for
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the Board’s decision not to grant EMAC’s request to extend the CUP. We agree with EMAC
concerning this assignment of error.
EMAC’s amended complaint alleged that the Board discriminated against it by rejecting
its application for an extension of CUP-2-12 for the southern sign while granting Northlake’s
extension request of CUP-2-12 for the northern sign. An impermissibly discriminatory decision
is unreasonable regardless of whether the existing zoning ordinance is reasonable as applied to
an applicant’s land. McDonald’s, 261 Va. at 591, 544 S.E.2d at 339. In order to allege a valid
claim for impermissible discrimination, the contesting party must show that the requested use
granted to one landowner was rejected as to “another similarly situated.” Id. (citation and
internal quotation marks omitted). If a landowner makes such a showing, the locality has the
burden to prove that there was a rational basis justifying the allegedly discriminatory action,
thereby establishing that the decision was fairly debatable. Id. Thus, if a landowner alleges that
a zoning decision impermissibly discriminated against it, it has implicitly alleged that the
decision was unreasonable. Therefore, the court erred in finding that EMAC was required to
allege that the existing zoning ordinance was unreasonable as applied to its land in order to state
a cause of action, and in granting defendants’ demurrer and motion to dismiss on that basis.
However, as an alternative basis for its decision to grant defendants’ demurrer, the circuit
court stated that the amended complaint and exhibits demonstrated that the decision to deny
EMAC’s extension request was supported by a rational basis and was fairly debatable. EMAC
claims that the circuit court erred in sustaining the demurrer on this ground as well. EMAC’s
amended complaint states that the Board’s decision to deny the extension of CUP-2-12 for the
southern sign was arbitrary and capricious and was impermissibly discriminatory because
EMAC and Northlake were similarly situated but treated differently. However, an examination
9
of the amended complaint and its exhibits, read in the light most favorable to the plaintiff, shows
that Northlake and EMAC are not similarly situated parties, and that the circuit court did not err
in concluding that the County’s decision concerning the extension of the CUP was fairly
debatable and supported by a rational basis.
The record before the circuit court on demurrer included EMAC’s lengthy amended
complaint and exhibits, including the exhibits that were the subject of the joint consent order on
defendants’ motion craving oyer, which included materials that the Board considered when it
denied EMAC’s extension application. The circuit court properly relied upon this extensive
record to conclude that the Board’s decision was fairly debatable, and that EMAC had failed to
allege facts upon which it could prevail in its challenge of the Board’s zoning decision. It was,
therefore, proper for the circuit court to sustain the defendants’ demurrer and motion to dismiss.
First, EMAC and Northlake are not similarly situated because Northlake was an applicant
for CUP-2-12 and EMAC was not. Hanover County Code § 26-322(a) states that an application
for a CUP “may be made by any property owner, attorney-in-fact of the owner, or tenant.”
Moreover, Hanover County Code § 26-322(b) states, “An application for a conditional use
permit shall include written permission from the owner of the subject property granting right of
entry to the zoning administrator and to agents of the County and law enforcement agencies, for
inspection purposes, during the term of any permit which may be issued.” While Northlake, the
owner of the land designated for the northern sign, was listed as an applicant on the application
for CUP-2-12 and it gave County representatives permission to enter its land to inspect upon
request, neither EMAC, the owner of the land designated for the southern sign at the time of the
application for CUP-2-12, nor its attorney-in-fact or tenant was an applicant, and EMAC gave no
such permission. Therefore, while CUP-2-12 was valid as to the northern sign, it was void ab
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initio as to the southern sign. 3 Concerned Taxpayers v. County of Brunswick, 249 Va. 320, 325,
455 S.E.2d 712, 714-15 (1995) (holding that the circuit court erred by granting a demurrer on a
third party challenge to a CUP when the third party alleged that the locality wrongfully granted a
CUP to a party that did not own or have a contract to buy the land subject to the CUP in violation
of the local zoning ordinance); Hurt v. Caldwell, 222 Va. 91, 97-98, 279 S.E.2d 138, 142 (1981)
(holding that a building permit issued that did not comply with the requirements of a local
ordinance “was void and of no effect”). Thus, the parties were not similarly situated because
Northlake was seeking an extension for a valid portion of CUP-2-12 while EMAC was seeking
an extension for a void ab initio portion of CUP-2-12. The reasonableness of the Board’s
decision not to grant EMAC an extension is fairly debatable, and as a result, the circuit court did
not err in granting the defendants’ demurrer and motion to dismiss.
Further, the application and grant of CUP-2-12 was at all times subject to the provisions
of Hanover County Code § 26-327 governing the duration of CUPs, which state that such
3
When part of a legislative enactment is void ab initio but the other part is not, the valid
portions of the enactment are usually preserved and the entire enactment is not rendered void, in
accord with Code § 1-243 (“The provisions of acts of the General Assembly or the application
thereof to any person or circumstances that are held invalid shall not affect the validity of other
acts, provisions, or applications that can be given effect without the invalid provisions or
applications. The provisions of all acts, except for the title of the act, are severable unless (i) the
act specifically provides that its provisions are not severable; or (ii) it is apparent that two or
more acts or provisions must operate in accord with one another.”); Hanover County Code § 1-4
(“If any part, section, subsection, sentence, clause or phrase of this Code is, for any reason,
declared to be unconstitutional or invalid, such decision shall not affect the validity of the
remaining portions of this Code.”); Toghill v. Commonwealth, 289 Va. 220, 227-28, 232-35, 768
S.E.2d 674, 678, 680-82 (2015) (discussing and applying the Court’s preference for invalidating
only unconstitutional applications of a statute instead of facially invalidating the statute).
Given that CUP-2-12 allows for two discrete signs and that the Board’s goal with CUP-2-
12 was to allow for signage for the proposed outlet mall, it is our judgment that the Board would
have preferred having one sign be valid instead of having both signs be rendered invalid. Thus,
the portion of CUP-2-12 allowing for the northern sign is not void ab initio even though CUP-2-
12 was void ab initio regarding the southern sign.
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permits are void one year after the date of approval “unless substantial construction or use” has
been initiated. The Board declined to grant EMAC additional time. Hanover County Code § 26-
327(b)(3) states that an extension of a CUP is only allowed if “approval of additional time is
consistent with the public interest.” EMAC complains that it was not given an extension while
Northlake was. However, Northlake and EMAC were not similarly situated with regard to
whether granting them additional time was consistent with the public interest.
In its amended complaint, EMAC asserts that the County is convinced that the proposed
Outlets at Richmond will fulfill the County’s goal of having an outlet mall that generates
millions of dollars of revenue for the County. It also agrees that Northlake, the developer of
Northlake Park, applied for CUP-2-12 to assist Craig Realty, the developer of the outlet mall that
was to be located within the park. The CUP allows for the construction of two destination
commerce signs that will advertise the outlet mall. The CUP application contemplated that
EMAC would sell the location for the southern sign to the outlet mall developer. The County
imposed conditions regarding the development of the outlet mall as a prerequisite to constructing
the signs. Pursuant to the terms of the CUP, an outlet mall must be developed prior to the signs
being allowed.
Northlake has an agreement with the outlet mall developer concerning the operation of
the northern sign on its property, and there is no controversy concerning whether extension of
that CUP is consistent with the public interest of developing the outlet mall and constructing the
sign. However, there is no such agreement between EMAC and Craig Realty for the southern
sign. Moreover, as noted by the circuit court, allegations in the amended complaint evidence an
adverse relationship between EMAC and the outlet mall developer. Additionally, the outlet mall
developer has requested that the southern sign, required by the CUP to advertise the outlet mall,
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be moved to a different location controlled by it. EMAC provides no argument as to why
granting it an extension would be consistent with the public interest. EMAC is unaffiliated with
the development of the outlet mall, which is a prerequisite for the signs to be constructed. Thus,
it is reasonably debatable as to whether it would be consistent with the public interest to give
EMAC additional time to fulfill the requirements of the CUP.
It was rational, fairly debatable and consistent with the public interest to allow the CUP
for the sign on EMAC’s property to lapse so that the Board can evaluate the appropriate
placement of the southern sign consistent with the public interest.
CONCLUSION
For the reasons stated, we affirm the judgment of the circuit court, and hold that it did not
err in granting defendants’ demurrer and motion to dismiss.
Affirmed.
JUSTICE POWELL, dissenting.
In my opinion, the trial court erred in granting the demurrer in the present case. By
alleging that the County relied on improper factors in its decision to deny EMAC an extension of
CUP-2-12, EMAC has sufficiently shown that the County’s actions were arbitrary and
unreasonable. Therefore, I believe that the trial court erred in granting the demurrer in the
present case. Furthermore, as the majority has correctly recognized, the trial court applied the
incorrect test. Although I agree with the majority as to what the proper test is in this case, I
disagree with the majority’s determination that EMAC and Northlake are not similarly situated
landowners. Accordingly, I must respectfully dissent.
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As an initial matter, I believe it is important to note the proper role of the courts in
reviewing a decision made by a zoning authority. We have explained that, because the decision
of a zoning authority is legislative in nature, a reviewing court should not be concerned with
whether the decision was right or wrong. Board of County Supervisors v. Davis, 200 Va. 316,
322, 106 S.E.2d 152, 157 (1958). Rather, the reviewing court should only concern itself with
whether there is evidence that the zoning authority “based its determination upon factors which
the [zoning authority] had no right to consider and which bore no substantial relation to the
public health, safety, morals, or general welfare.” Id. Where the evidence demonstrates that the
decision of the zoning authority was made based on consideration of improper factors, the
decision of the zoning authority is arbitrary and unreasonable. Id. Further, it is well-established
that “[a] demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of
proof.” Glazebrook v. Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).
Thus, to survive demurrer in the present case, EMAC need only allege that the County
considered improper factors in denying its extension of CUP-2-12. Notably, EMAC specifically
alleged that the County denied the extension to guarantee that Craig Realty, and not EMAC,
enjoyed the profits generated by the sign, and to eliminate competition between the two signs by
granting Craig Realty a monopoly over the signs. None of these reasons bear any relation to
public health, safety, morals, or general welfare and, therefore, are improper factors. See Davis,
200 Va. at 323, 106 S.E.2d at 157 (recognizing that improper factors include consideration of
economic detriment to others, the desire to restrict competition, or the desire to perpetuate a
monopoly). As nothing in the record contradicts these allegations, I believe that EMAC’s
complaint sufficiently alleged that the County’s decision was arbitrary and unreasonable;
therefore, the trial court erred in granting the demurrer.
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Moreover, we have recognized that, where a party alleges facts that, if true, would
demonstrate that a zoning authority’s actions are unreasonable, that party is “entitled to
present . . . evidence to challenge the presumptive reasonableness of the legislative action.”
Concerned Taxpayers v. County of Brunswick, 249 Va. 320, 328, 455 S.E.2d 712, 716 (1995).
Further, we have stated that no determination can be made as to whether the zoning authority’s
decision was fairly debatable until the court has heard the evidence. Id. As EMAC was denied
the opportunity to present evidence we have stated it was entitled to present, I believe that the
majority’s finding that the County’s actions were fairly debatable is premature. Accordingly, I
would remand the matter to the trial court to afford EMAC the opportunity to present the
evidence we have stated it is entitled to present.
I further take issue with the majority’s determination that EMAC and Northlake were
similarly situated. Our jurisprudence has clearly established that “[t]o sustain a claim of
impermissible discrimination, the party contesting the zoning action must show that ‘a land use
permitted to one landowner is restricted to another similarly situated.’” Board of Supervisors v.
McDonald’s Corp., 261 Va. 583, 591, 544 S.E.2d 334, 339 (2001) (quoting Board of Supervisors
v. Rowe, 216 Va. 128, 140, 216 S.E.2d 199, 209 (1975)). However, as McDonald’s clearly
establishes, in determining whether the landowners are “similarly situated,” the focus of our
analysis should be on the properties at issue, not on the landowners. Id. at 591, 216 S.E.2d at
339. In determining that the landowners in McDonald’s were not similarly situated, this Court
enumerated eight “factors that distinguish the subject property from the comparison sites.” Id.
Notably, each of these enumerated factors references the “subject property” and how it is
different from one or both of the comparison sites; none of the enumerated factors refer to any
differences between the landowners. Id. at 591-92, 216 S.E.2d 339-40. Indeed, it is particularly
15
telling that McDonald’s contains virtually no discussion about any of the landowners beyond the
fact that they own the properties at issue.
As previously noted, this Court has recognized that a zoning authority may not consider
or base its actions on improper factors (i.e., factors that bear “no substantial relation to the public
health, safety, morals, or general welfare.”) Davis, 200 Va. at 322, 106 S.E.2d at 157. Only the
nature of the property and the manner in which it is used relate to public health, safety, morals,
or general welfare; the identity of the landowner bears no such relation. Indeed, we have
implicitly recognized that a zoning authority’s consideration of the identity of a landowner is
improper, as such consideration serves only “to restrict competition or to protect an enterprise
which may have been encouraged by a prior zoning classification.” Id.; see also Benson v.
Zoning Board of Appeals, 27 A.2d 389, 391 (Conn. 1942) (“[T]he zoning authority has no right
to regard the prevention of competition as a factor in administering the zoning law.”). Given that
zoning laws deal with the manner in which property is used and not who is using the property, it
is only logical that, in determining whether landowners are “similarly situated” our focus must
necessarily be on a comparison of the properties and not the landowners.
In the present case, neither party has identified any difference in the properties, other than
the ownership. It is particularly telling that CUP-2-12 was initially approved with regard to both
proposed locations for the signs, indicating that the County agrees that the properties were
substantially similar (i.e., both were suitable locations for the signs). It is also worth noting that
both properties are located in an area that the County has designated as a Destination Commerce
area known as Northlake Park (also referred to as Northlake Subdivision or Northlake
Development). Similarly, both properties offer high visibility from the interstate, making them
ideal locations for a destination commerce sign. Thus, in my opinion, it is unequivocal that, at
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least with regard to the portion of the properties where the signs were to be located, both EMAC
and Northlake are similarly situated landowners.
Even assuming it is proper to compare landowners, I disagree with the majority’s
determination that these landowners are not similarly situated. According to the majority,
EMAC and Northlake are not similarly situated landowners because CUP-2-12 is only valid with
regard to Northlake and void ab initio with regard to EMAC. The majority further asserts that
“Northlake and EMAC were not similarly situated with regard to whether granting them [an
extension of the CUP] was consistent with the public interest.” As I have previously indicated, I
believe these findings are premature, as EMAC is entitled to present its evidence before such a
determination is made. Additionally, in my opinion, these findings are not supported by the
record.
In its complaint, EMAC alleged that the application for CUP-2-12 was “fully consistent
with the Comprehensive Plan, in the public interest, and complied with all other requirements.”
(Emphasis added.) Further, the CUP application form identifies both Northlake’s property and
EMAC’s property as the subjects of the application. Moreover, the CUP application form
expressly allows the “owner or authorized agent of the property” to certify that the application is
complete and grant County representatives entry on the property. (Emphasis added.) Thus, it
may be fairly inferred that, with regard to the application for CUP-2-12, Northlake and
Dominion Land were acting as EMAC’s authorized agents. Taking this fact as true, EMAC has
met the requirements of Hanover County Code § 26-322 and, at least at this point in the
proceedings, it cannot be said that CUP-2-12 is void ab initio with regard to EMAC. 1
1
It is further worth noting that any implication that Northlake could not act as EMAC’s
authorized agent in applying for CUP-2-12 is unavailing. If such an argument were correct, then,
under the majority’s logic, Northlake’s 2014 extension of CUP-2-12 is also void ab initio.
17
With regard to the majority’s finding that granting EMAC an extension of the CUP was
not in the public interest, the majority appears to rely on the assumption that the signs at issue in
the present case are only for the benefit of Craig Realty and the outlet mall and, therefore, an
agreement between EMAC and Craig Realty was a prerequisite for the construction of the signs.
Under Hanover County Code § 26-277(e)(4), however, the signs at issue are “for the
identification of businesses within the area designated for Destination Commerce.” As
previously noted, the area designated for Destination Commerce in the present case is Northlake
Park, which includes several businesses, including McGeorge Rolling Hills RV, 2 a Harley-
Davidson Distribution Center, and, eventually, those located in the outlet mall. Therefore,
Hanover County Code § 26-277(e)(4) dictates that the sign is for the benefit of all of those
businesses. Even Northlake has recognized this fact, as page 10 of the application for CUP-2-12
expressly states that the signs will promote not only the outlet mall, but the other tenants of the
Northlake Park as well. Accordingly, in determining whether the extension of the CUP was in
the public’s interest, the focus should be on whether a sign on EMAC’s property would meet the
requirements of Hanover County Code § 26-277(e)(4). Given that there is no evidence one way
Notably, the record unequivocally establishes that, in 2013, only Dominion Land applied for the
extension of CUP-2-12. The record clearly establishes that Dominion Land and Northlake are
entirely separate companies and that Northlake is the sole owner of the site for the proposed
northern sign. Thus, unless Dominion Land was acting as Northlake’s authorized agent,
Northlake failed to request an extension for CUP-2-12 before it expired, as is required by
Hanover County Code § 26-327(b)(1)(a). As CUP-2-12 expired as to Northlake in 2013,
Northlake could not have been granted an extension for CUP-2-12 in 2014. Therefore, if CUP-
2-12 is void ab initio as to EMAC, then Northlake’s 2013 extension of CUP-2-12 is also void ab
initio. If, on the other hand, Northlake’s 2013 extension of CUP-2-12 is valid, then CUP-2-12 is
also valid as to EMAC.
2
Notably, McGeorge Rolling Hills RV is located entirely on EMAC’s property.
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or the other on this matter, I do not believe that a decision can be made at this point as to whether
the extension of CUP-2-12 is in the public interest. 3
For the foregoing reasons, I cannot join in the decision of the majority. In my opinion,
the pleadings, even when the attached documents are considered, sufficiently allege that the
properties at issue in the present case are substantially similar and the County’s decision to favor
one landowner over the other was discriminatory. Accordingly, I would reverse the decision of
the trial court and remand the matter for further proceedings.
3
The majority also appears to rely on Craig Realty’s decision to move the sign to a less
ideal location as demonstrating that the extension of CUP-2-12 is not in the public interest.
However, assuming that the public interest implicated by these signs is related to the tax dollars
generated by the retailers in Northlake Park, as Hanover County Code § 26-277(e)(4) indicates, it
cannot be said that such a move is in the public interest. The record demonstrates that the new
location has less visibility. Less visibility means less traffic and less traffic results in fewer tax
dollars being generated. Thus, the record demonstrates that such a move is actually not in the
public interest. Indeed, it would appear from the record that the only entity that benefits from
such a move is Craig Realty.
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