Charlene Hicks—Senior Attorney
In Hartley v. Board of Supervisors, 80 Va. App. 1, 897 S.E.2d 217 (2024), the Virginia Court of Appeals issued a published opinion that deliberately discounts the role that a locality’s comprehensive plan must play in the Board of Supervisors’ decision to approve a private rezoning application. The decision also requires a court to view with great leniency the Board’s rezoning decision in light of the requirements set forth in Virginia Code §§ 15.2-2283 and 15.2-2284. Hartley thus paves the way for localities to quite easily effectuate a substantial change in the character of a single parcel of private property from the surrounding neighborhood.
Anne Hartley and Prospect Cemetery Association filed a lawsuit objecting to the Brunswick County Board of Supervisors’ approval of a property developer’s application to upzone a two-plus acre parcel within the small town of Ebony from A-1 Agricultural to B-1 Business use for the purpose of constructing a Dollar General store. In the underlying action, Hartley argued that the Board’s decision was arbitrary and capricious because the proposed retail store did not substantially accord with the Brunswick County Comprehensive Plan, which envisioned the entire Ebony area as remaining rural residential in character indefinitely into the future. The size of the proposed Dollar General store far exceeded the maximum square footage allowed for a small business to operate in an A-1 Agricultural area with a conditional use permit. In addition, Hartley argued that the Board failed to take into account the required factors set out in Virginia Code §§ 15.2-2283 and 15.2-2284 before deciding to approve the upzoning. Among other things, the proposed retail store would unduly increase traffic congestion around an unsafe intersection, would create a blight on the picturesque landscape, and would discourage outdoor recreational tourism in the Ebony area.
After the trial court granted summary judgment in the Board’s favor, Hartley appealed the matter to the Virginia Court of Appeals. The Court of Appeals determined that Virginia Code § 2232 requires only that proposed public facilities—and not private facilities—be substantially in accord with the comprehensive plan to be approved by the Board. Hartley, 80 Va. App. at 16. With regard to private facilities such as the proposed Dollar General store, “alignment with the comprehensive plan is only one of several statutory factors that a legislative body must consider in amending its zoning ordinance.” Id. at 17-18. In effect, whether a proposed zoning change aligns with the comprehensive plan is to be given the same consideration as the other statutory factors listed in Virginia Code §§ 15.2-2283 and 15.2-2284. Even if the proposed rezoning fails to align with the comprehensive plan, the court “must apply the presumption of validity to the legislative action and evaluate whether the change was supported by some evidence of reasonableness.” Hartley, 80 Va. App. at 18 (internal quotation marks omitted).
Turning to the statutory factors for consideration under Virginia Code §§ 15.2-2283 and 15.2-2284, the court stated that although localities must give “reasonable consideration” to the enumerated factors, these factors “often conflict with one another” and not all factors are applicable in all situations. Hartley, 80 Va. App. at 20. Further, a Board’s “failure to consider the statutory factors on the record does not render a legislative decision arbitrary and capricious as a matter of law.” Id. at *19. Instead, the court was to “evaluate only whether the Board's decision was fairly debatable in the context of the required statutory factors.” Id. The court ruled that because Hartley had failed to show that the B-1 Business designation for the property was wholly unreasonable, the Board’s upzoning decision had to be upheld. Id. at 28.
The threshold of acceptability for a local Board of Supervisors to approve a zoning change for a single private parcel, as established by Hartley, is remarkably low. According to Hartley, basically any evidence whatsoever that the Board can point to in support of its rezoning decision will provide sufficient support for that decision. For all practical purposes, Hartley may essentially eliminate judicial oversight or review of a Board’s rezoning decisions.
