Loch Levan Land v. Board of Supervisors , 831 S.E.2d 690 ( 2019 )

PRESENT: All the Justices
LOCH LEVAN LAND LIMITED PARTNERSHIP, ET AL.
OPINION BY
v. Record No. 181043 JUSTICE STEPHEN R. McCULLOUGH
August 22, 2019
BOARD OF SUPERVISORS OF HENRICO COUNTY, ET AL.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Charles James Maxfield, Judge
Dominion Club Drive is a significant “spine” road that runs through the Wyndham
development in Henrico County. HHHunt 1 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
1
The suit was filed by four plaintiffs: Loch Levan Land Limited Partnership, the original
developer of Wyndham, Wellesley Land Limited Partnership and HHH Land, LLC, which
purchased land in Hanover County adjacent to the Loch Levan parcels, and HHHunt
Corporation, which is currently pursuing development of the Hanover County parcels. For the
sake of simplicity, we will refer to the plaintiffs as HHHunt.
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.
2
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
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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
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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
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Club Drive. On appeal, we review a trial court’s statutory interpretation de novo. Mercer v.
MacKinnon, 297 Va. 157, 162 (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 approval of the
recorded plat or final site plan shall adversely affect the right of
the subdivider or developer or his successor in interest to
commence and complete an approved development in
accordance with the lawful terms of the recorded plat or site
plan unless the change or amendment is required to comply
with state law or there has been a mistake, fraud or a change in
circumstances substantially affecting the public health, safety or
welfare.
(Emphasis added.)
Code § 15.2-2261(F) provides that
An approved final subdivision plat that has been recorded, from
which any part of the property subdivided has been conveyed
to third parties (other than to the developer or local jurisdiction),
shall remain valid for an indefinite period of time unless and
until any portion of the property is subject to a vacation action
as set forth in §§ 15.2-2270 through 15.2-2278.
Code § 15.2-2261(C) thus provides that a recorded plat remains valid for five years after
approval, and that a locality may not adversely affect the right of a developer to commence and
complete the subdivision. Code § 15.2-2261(F) extends that right to “an indefinite period of
time” (except for a vacation action) if the recorded plat was one “from which any part of the
property subdivided has been conveyed to third parties.”
Like the circuit court, we conclude that HHHunt’s right to develop Dominion Club Drive
was limited to five years. In 1992, HHHunt recorded a separate, specific plat designated 1C-2,
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for the sole purpose of dedicating a right-of-way to complete Dominion Club Drive to the
Henrico County line. Under the plain language of Code § 15.2-2261(C) this was the “recorded
plat” that was valid for five years. Because HHHunt did not complete the road in five years, its
statutory rights to complete this road had expired.
Code § 15.2-2261(F) covers the situation where “[a]n approved final subdivision plat that
has been recorded, from which any part of the property subdivided has been conveyed to third
parties.” (Emphasis added.) In that circumstance, the approved final subdivision plat “shall
remain valid for an indefinite period of time.” HHHunt did obtain approval for a final
subdivision plat, but the relevant plat is the 1C-2 plat. That plat was for a portion of Dominion
Club Drive and did not convey any part of the property subdivided to any third parties.
Accordingly, Code § 15.2-2261(F) does not apply.
HHHunt challenges this straightforward textual interpretation of these Code sections with
a number of arguments. First, it contends that, under the plain language of Code § 15.2-2261(C),
where a developer has obtained “final” approval of a project, no change in local ordinance,
policy or plan can adversely impact the right of the developer “to commence and complete an
approved development in accordance with the lawful terms of the recorded plat or site plan.”
The “approved development” in this case, HHHunt argues, “is Wyndham and it was first
approved by Henrico County in 1989.” We do not agree.
“[C]ourts have a duty to interpret the several parts of a statute as a consistent and
harmonious whole so as to effectuate the legislative goal. A statute is not to be construed by
singling out a particular phrase.” City of Richmond v. Va. Elec. & Power Co., 292 Va. 70, 74
(2016). The focus of Code § 15.2-2261 is on individual subdivision plats and site plans. The
most logical construction of the words “approved development” in Code § 15.2-2261(C) is that
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they refer to the development shown on the recorded plat, in this instance the 1C-2 plat. The
County’s interpretation is consistent with the idea, often referred to by the Latin phrase noscitur
a sociis, under which
the meaning of doubtful words in a statute may be determined by
reference to their association with related words and phrases.
When general words and specific words are grouped together, the
general words are limited and qualified by the specific words and
will be construed to embrace only objects similar in nature to those
objects identified by the specific words.
Andrews v. Ring, 266 Va. 311, 319 (2003) (citation omitted). Moreover, as the County points
out, accepting this argument would render superfluous the words “in accordance with the lawful
terms of the recorded plat.” See Code § 15.2-2261(C). “We ordinarily resist a construction of a
statute that would render part of a statute superfluous.” Davis v. MKR Dev., LLC, 295 Va. 488,
494 (2018). The words “approved development” do not bear the weight HHHunt seeks to place
on them.
We are not convinced by HHHunt’s claim that the “clear intent of the statute” is to
“protect a developer’s vested rights in the overall development – not just constituent parts of the
development.” As noted above, the plain language of the statute tethers the right to commence
or complete a subdivision to “plats” and “site plans.” The plain language of the statute also
differentiates between a recorded plat “from which any part of the property subdivided has been
conveyed to third parties,” and a recorded plat where no such conveyance has occurred.
Compare Code § 15.2-2261(C), with Code § 15.2-2261(F). The statute does not use the words
“overall development.”
We also reject the claim that this interpretation of Code § 15.2-2261 would lead to absurd
results. HHHunt posits that it cannot be the legislature’s intent to allow a subdivision plat to
have unlimited validity while limiting to five years the validity of the road plats that service the
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subdivision. A locality, the argument goes, could thus stop a development by the expedient of
simply eliminating access to it. First, under Code § 15.2-2261(C), developers have the right to
“commence and complete” a road within the five-year period. A five-year period is a significant
period for a developer to complete a road. Furthermore, developers can dedicate access roads on
the same plat as the subdivision plat, thereby extending the indefinite right under Code
§ 15.2-2261(F) to the access roads. Finally, in the unlikely event a locality might seek to cut off
road access to a platted, approved subdivision, Code § 33.2-920 allows a court to step in and
override a locality’s decision to abandon a road when a public necessity exists for that road.
HHHunt’s attempt to conjure the prospect of stranded, roadless subdivisions is thus
unpersuasive.
Moreover, although we have recognized that a statute should not be interpreted in a
manner that leads to absurd results, “absurd” in this context does not mean “bad policy” or “a
result a litigant really, really does not like.” “[O]ur case law uses the phrase ‘absurd result’ to
describe situations in which the law would be internally inconsistent or otherwise incapable of
operation.” Cook v. Commonwealth, 268 Va. 111, 116 (2004). “Here, it is entirely possible to
carry out the law as written in unambiguous terms in a manner consistent with the General
Assembly’s apparent intent.” Id.
HHHunt further argues that Dominion Club Drive is “associated directly and
inextricably” with certain subdivisions, specifically, Manor Park and Wexford. 2 However,
2
The record does not support HHHunt’s argument that the completion of Dominion Club
Drive to the Hanover County line was a condition for the construction of the Wexford and Manor
Park subdivisions. The recorded plats for both subdivisions do not contain any condition
requiring completion of the road to the Hanover county line. The record also refutes any
contention that Henrico County’s Planning Department conditioned approval of the plat upon
completion of the road.
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HHHunt made the decision to record the 1C-2 plat separately from those subdivisions. It could
have dedicated the entirety of Phase 1C-2 of Dominion Club Drive on the Wexford plat but it did
not. In addition, the Wexford and Manor Park subdivisions have long been completed without
the construction of the portion of road shown on the 1C-2 plat, so the claimed inextricable link is
missing.
Finally, HHHunt argues that Code § 15.2-2209.1(A) preserves its right to extend
Dominion Club Drive. That statute provides in relevant part as follows:
Notwithstanding the time limits for validity set out in §§ 15.2-2260
or 15.2-2261 . . . any recorded plat or final site plan valid under
§ 15.2-2261 and outstanding as of January 1, 2017, shall remain
valid until July 1, 2020. . . . Any other plan or permit associated
with such plat or site plan extended by this subsection shall
likewise be extended for the same time period.
According to HHHunt, “the Wexford and Manor Park plats are valid and fall within the scope of
§ 15.2-2261(F).” Appellant Br. at 30. Therefore, HHHunt argues, any associated ‘plans or
permits,’ such as the road dedication plat for 1C-2, which clearly show Dominion Club Drive,
also remain valid at least through January 1, 2020. However, the 1C-2 road dedication plat is not
“associated” with the Wexford or Manor Park plats as Code § 15.2-2209.1(A) contemplates
because HHHunt made the decision to separately record it and chose not to build the road for an
extended period of time. Also, a “plan or permit” within the intendment of Code
§ 15.2-2209.1(A) means documents like erosion and sediment control plans, Code
§ 62.1-44.15:55, stormwater management permits, Code § 62.1-44.15.34, or building permits,
Code § 62.1-44.15:34. By contrast, the 1C-2 plat is a “plat” – not a “plan or permit.” The Code
distinguishes between the two. Code § 15.2-2209.1 does not apply.
When HHHunt obtained the rezoning for Wyndham in 1989, it plainly expected to extend
Dominion Club Drive into Hanover County at some indefinite point in the future. Its legal right
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to do so, however, expired five years after recording the plat for the final stretch of road that
would accomplish this objective. HHHunt could have submitted construction plans and built this
portion of road within five years of recording the plat for Phase 1C-2 of the road. Furthermore,
as the County concedes, HHHunt could have dedicated the entire Phase 1C-2 right-of-way when
it recorded the Wexford subdivision plat, and had it done so it would have gained an indefinite
right under Code § 15.2-2261(F) to extend Dominion Club Drive to the Hanover County line.
HHHunt chose a specific course of action, which was to proceed incrementally and to record
separate plats for distinct segments of Dominion Club Drive. That course of action triggered
specific statutory protections and foreclosed others. HHHunt’s election to segment the plats for
Dominion Club Drive allowed it to avoid “spend[ing] money” to complete the road, but it lost
the indefinite protection offered by Code § 15.2-2261(F).
II. HHHunt has no constitutionally vested right in the continuation of Dominion
Club Drive.
HHHunt also claims a constitutionally vested right to develop Dominion Club Drive to
the Hanover County line. The Constitution of Virginia recognizes as “inherent rights” “the
enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing
and obtaining happiness and safety.” Va. Const. art. I, § 1. Respect for, and protection of,
private property has been a cornerstone of our Nation’s liberty and prosperity. The
Commonwealth’s constitution further recognizes, however, that the people elect representatives
to legislate “for the common benefit, protection, and security of the people.” Va. Const. art. I, §
3. From colonial times to the present day, legislative bodies have regulated private property for
the common good. See, e.g., Hening’s Statutes at Large 152 (March 1629-30) (requiring the
landowners to plant corn to ensure the colony had a sufficient supply of food).
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The Constitution of Virginia, like its federal counterpart, imposes limits on a
government’s exercise of its police powers. They both forbid the deprivation of property without
due process of law. U.S. Const. amend. XIV; Va. Const. art. I, § 11. The United States Supreme
Court has recognized the need for compensation when a “regulatory taking” has occurred, that is,
when regulatory demands become confiscatory. See, e.g., Murr v. Wisconsin, 137 S. Ct. 1933
(2017). In addition, although the standard of review is deferential to governmental action, the
Constitution forbids irrational laws. Compare St. Joseph Abbey v. Castille, 712 F.3d 215 (5th
Cir. 2013) with Sensational Smiles, LLC v. Mullen, 793 F.3d 281, 286 (2d Cir. 2015).
HHHunt does not inform us what provision of the Constitution of Virginia has allegedly
been infringed. Instead, it seeks to analogize its right to build a road under the statutes at issue to
vested rights principles that apply in zoning cases. We have recognized a landowner’s “right to
develop a specific project under existing zoning conditions and allow continuation of the non-
conforming use when that zoning designation is amended or changed.” Board of Sups. v.
Greengael, L.L.C., 271 Va. 266, 282-83 (2006). The present context, however, is quite different
from zoning.
“A vested right in a land use is a property right which is created and protected by law.”
Holland v. Johnson, 241 Va. 553, 556 (1991). The vested rights doctrine is inapplicable where
there is no underlying property right for the constitution to protect. We have recognized that, in
the zoning context, a landowner has no vested rights in the zoning classification or land uses of
his or her neighbor, that is, in land the landowner does not own. Town of Leesburg v. Long Lane
Assocs., Ltd. P’ship, 284 Va. 127, 136 (2012). In addition, we have held that there is no vested
right in a public road. Board of Sups. of Louisa Cnty. v. Virginia Elec. & Power Co., 213 Va.
407, 412 (1972); see also Smith v. Board of Sups., 201 Va. 87, 93-94 (1959). Here, the
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dedication of a road “shall operate to transfer, in fee simple, to the respective localities in which
the land lies the portion of the premises platted as is on the plat set apart for streets, alleys or
other public use.” Code § 15.2-2265. HHHunt had no property right in Dominion Club Drive
once it dedicated that road. By law, the County owned the road in fee simple.
Our cases foreclose the argument that HHHunt can have a vested property right in the
continuation of a public road. It had a statutory right to construct the road within five years. It
forfeited that right through inaction.
III. The County lawfully abandoned a segment of Dominion Club Drive and the
evidentiary record supports its decision.
A. The County could rely on the provisions of Title 33.2 to abandon the extension of
Dominion Club Drive.
The County’s argument is straightforward: by statute, a locality may elect to abandon a
road that is part of its road system. See Code § 33.2-915(A). Dominion Club Drive is part of the
County road system. The County contends that it availed itself of the procedure under Title 33.2
to abandon a stretch of Dominion Club Drive and it did so in a manner that satisfied statutory
requirements. HHHunt responds that the County used the wrong Code provision. It asserts that
Title 33.2 is not the proper statutory mechanism to abandon a portion of a road. Instead, it
contends, the County should have used the procedures in Title 15.2.
Under Code § 15.2-2261(F), a recorded subdivision plat is valid indefinitely unless it is
vacated under the provisions found in Title 15.2. Code § 33.2-925 provides that “[a]s an
alternative to the procedure for abandonment prescribed by this article, a road may be abandoned
in accordance with the procedure for vacations in subdivision 2 of § 15.2-2272.” Code
§ 33.2-925 specifically provides that “the procedure for vacations in subdivision 2 of
§ 15.2-2272” is an “alternative” way to abandon a road. Code § 15.2-2261(F) thus cannot be the
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exclusive way to abandon a road. The General Assembly thus expressly provided that the
procedures can be employed in the alternative, at the option of the locality. We are not at liberty
to ignore this statutory language. Additionally, this is not a case under which the County seeks
to vacate a subdivision. Accordingly, the County could elect to proceed under the abandonment
provisions found in Title 33.2.
B. The circuit court properly sustained the Board’s decision to abandon a portion of
Dominion Club Drive. 3
We turn next to the substance of HHHunt’s challenges to the County’s decision to
abandon a portion of Dominion Club Drive. In determining whether to abandon the road, the
County Board of Supervisors was required to find that the road is “no longer necessary for public
use” and to consider “the historic value, if any, of such a road.” Code § 33.2-915. In addition,
Code § 33.2-919 requires consideration of whether a “public necessity exists for the continuance
of the section of road . . . or that the welfare of the public would be served best by abandoning
the section of road.”
In deciding to abandon a portion of Dominion Club Drive, the Board reviewed the history
of the road, cited relevant Code provisions, and noted that this particular section of road “has not
been extended northward, does not connect to a road for public passage north of Isleworth Drive,
and ends at a graveled cul-de-sac bounded by a gate.” Clearly, the Board considered the facts
and the law.
In reviewing the propriety of the County’s action, the circuit court must “determine
whether public necessity exists for the continuance of the section of road . . . as a public road . . .
3
Code § 33.2-920 requires a circuit court to review a decision to abandon a road “de
novo.” The circuit court repeatedly stated that it was conducting a “de novo review.” HHHunt’s
argument that the circuit court employed a standard other than de novo is unpersuasive.
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or whether the welfare of the public will be served best by abandoning the section of the road . . .
as a public road.” Code § 33.2-920. The use of the word “or” indicates a legislative intent to
allow a road to be abandoned either if no public necessity exists for the continuance of the
section of road or if the welfare of the public will be served best by abandoning the section of the
road. See Smith, 201 Va. at 89 (“[T]he statute is in the disjunctive, and the road may be
abandoned if either requirement is met.”).
The circuit court heard evidence over the course of four days. It concluded that “[p]ublic
opposition, safety concerns, and intersection failure are all proper concerns for the board’s
decision, and they cannot be seen as arbitrary and capricious.” 4
HHHunt asserts that the County had no rational basis to abandon the road. It claims that
the County acted simply to appease politically active residents. Furthermore, it contends that
extending Dominion Club Drive would benefit Wyndham residents who are aging by facilitating
an option for them to move into an age-restricted community nearby. It proffered traffic studies
showing a minimal impact on traffic in the Wyndham subdivision. Moreover, it argues that an
increase in traffic had been anticipated long ago and Dominion Drive was designed and built to
accommodate such traffic. It also points out the County’s absence of traffic studies.
First, it is worth noting that the “road” Henrico County abandoned was not an actual road
the public could use for travel. HHHunt did some clearing and grading and placed a layer of
stone on part of the road depicted on the 1C-2 plat. The road is an impassable dead end. It is not
open to the traveling public and has never been open. Certainly, no present public necessity
4
The circuit court rested its decision on three grounds: public opposition, safety
concerns, and intersection failure. HHHunt’s argument that the court below found “that public
opposition per se is a legitimate basis for sustaining the abandonment of a road” is without
support in the record. The circuit court did not rest its decision on public opposition alone.
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exists for the continuation of such a “road.” No residents or existing businesses will be stranded.
Future convenience might militate in favor of the continuance of such a road, but that
convenience must be weighed alongside the detriment of increased congestion in a residential
subdivision and the prospect of still more congestion in the future.
Second, although HHHunt dismissively portrays opposition from Wyndham residents to
the extension of Dominion Club Drive as groundless and irrational, residents’ worries were
certainly relevant to the Board’s decision. The intersection of Dominion Club Drive and
Wyndham Park Drive was already a source of frequent backups. Additional traffic would add to
residents’ existing woes. Every minute spent in traffic is a minute that is no longer available for
family, work, or leisure. Residents’ concerns over the quality of life in their neighborhood were
hardly the stuff of blind, irrational prejudice. As the United States Court of Appeals for the
Fourth Circuit trenchantly but aptly observed in an analogous context,
It is not only proper but even expected that a legislat[ive body] and
its members will consider the views of their constituents to be
particularly compelling forms of evidence, in zoning as in all other
legislative matters . . . .
Indeed, we should wonder at a legislator who ignored such
opposition. In all cases of this sort, those seeking to build will
come armed with exhibits, experts, and evaluations. Appellees, by
urging us to hold that such a predictable barrage mandates that
local governments approve applications, effectively demand that
we interpret the Act so as always to thwart average, nonexpert
citizens; that is, to thwart democracy.
AT&T Wireless PCS v. City Council of Va. Beach, 155 F.3d 423, 430-31 (4th Cir. 1998).
Third, evidence besides public opposition supports the circuit court’s decision. Michael
Jennings, the Assistant Director of Public Works, testified that, on weekday mornings, traffic at
the intersection of Dominion Club Drive and Wyndham Park Drive backs up “almost four, five
hundred feet.” He opined that an increase in traffic on Dominion Club Drive would cause the
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intersection of Dominion Club Drive and Wyndham Park Drive to “fail miserably.” Three
professional engineers testified that the extension of Dominion Club Drive would create safety
issues in Wyndham. They mentioned an increased risk of accidents, access problems for
emergency vehicles, “more conflicts” with pedestrians at crosswalks, and difficulty in crossing
congested roads.
As to HHHunt’s traffic studies, the County presented evidence that undermines the
strength of their conclusions. The County presented evidence that the studies undercounted
potential traffic. The County also presented evidence of plans, such as Hanover County’s Major
Thoroughfare Plan and plans for business development, that would cause traffic to flow into
Wyndham should Dominion Club Drive be open to traffic from that direction. It was for the
circuit court to evaluate the credibility of the conflicting evidence presented.
The record shows that the Board’s decision was not arbitrary or capricious. The circuit
court properly exercised its de novo review of the Board’s decision and correctly sustained that
decision.
CONCLUSION
For all these reasons, we will affirm the judgment of the circuit court.
Affirmed.
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