Virginia's state judges, after holding landowners' and developers' rights sacrosanct for generations, have begun giving local governments more authority to control the extent and placement of new development.
Since 1980, the seven-member state Supreme Court, while rendering at least two prodevelopment decisions, has also handed down a series of land use decisions upholding local governments' rejection of development plans when they did not conform to local officials' adopted plans or perceptions about what was in the public's best interest.
In the same vein as the majority of the recent Virginia Supreme Court decisions, and to the surprise of many Fairfax County officials, Fairfax Circuit Court Judge Johanna L. Fitzpatrick recently upheld the strong restrictions that county supervisors had placed on residential development in the Occoquan watershed in the southwestern section of the jurisdiction.
Under the approved limits, no more than one house can be built on every five acres in most of the largely rural, 41,000-acre area -- a move designed to protect the drinking water supply in the Occoquan Reservoir from development-related pollution.
In Maryland, a decision such as Fitzpatrick's Occoquan ruling would be the norm. Courts routinely have upheld the right of local governments to control zoning and development. In fact, four years ago, a Montgomery Circuit Court judge upheld the County Council's downzoning of 88,000 acres in upper Montgomery to create 25-acre tracts in order to preserve farms.
"Maryland courts generally give tremendous weight to the actions of the legislatures," whatever the governing body may be, said R. Robert Linowes, an attorney who has long represented development interests in Maryland and the District.
In conservative Virginia, however, landowners' rights by tradition have been as revered as George Washington and Thomas Jefferson.
In early 1970s, Fairfax officials were often frustrated in their attempts to control the rapid suburbanization they believed threatened to overwhelm the county.
County supervisors often rejected rezoning proposals for high-density residential development on grounds that they were ill-timed because public facilities such as roads, sewers, schools and libraries for the new neighborhoods had yet to be built.
No sooner were the zoning changes rejected than developers sued. The results were a foregone conclusion: Local judges and the Virginia Supreme Court routinely overturned the local government decisions and allowed more development.
Since 1980, the seven-member state Supreme Court has rejected a Fairfax bid to make approval for expansion of a nursery contingent on the owner's construction of a right-hand turn lane into his property and has overturned a Henrico County zoning decision that would have blocked construction of a planned apartment complex.
But most of the state Supreme Court's recent decisions have approved local government actions.
Among other cases, the court upheld a major decision by the Loudoun County Board of Supervisors to reject plans by shopping center magnate Theodore N. Lerner for a massive regional retail complex in the county; it supported Fairfax's decision to deny auto dealer Dave Pyles the right to expand his dealership on Little River Turnpike; it upheld another Fairfax decision turning down a homeowner's request to subdivide his 1 1/2-acre tract so that a second home could be built, and it approved Roanoke's decision banning construction of a funeral home in a residential neighborhood.
Marc Bettius, a lawyer who won development rights for three landowners in the Occoquan case while losing on the broader zoning issue, said Virginia judges now are giving "a very heavy presumption of validity" to local government actions.
"It's truly a desire on the Supreme Court's part to disengage itself from land use decisions," Bettius said. "They were much more sensitive to property owners. Now there is a trend toward majorityism," the idea that elected officials ought to be best able to make decisions representing the best interests of the majority of their constituents.
Lillian R. BeVier, a University of Virginia law professor, and Denis J. Brion, a Washington and Lee University law professor, said in a 1981 study of 17 Virginia Supreme Court land use decisions from 1955 to 1978 that the court seemed interested only in whether local zoning actions were "consistent with the land use preferences of the individual developer."
"These 17 decisions reveal a strong judicial intolerance for the erosion of the land developer's constitutionally protected private rights by the exercise of the zoning power," BeVier and Brion wrote.
They said the state's highest court "has decided these zoning cases as if only one of the eight purposes of zoning" allowed in Virginia law "is valid -- to encourage economic development activities."
Among the decisions, the state Supreme Court overturned Fairfax efforts to deny rezonings aimed at channeling development to so-called growth clusters and to phase development over a period of years depending on the availability of public facilities. In another development case, the state Supreme Court rejected Fairfax's bid to require builders to include a certain amount of low- and moderate-income housing in most new developments.
BeVier said that in recent years, however, the Virginia Supreme Court has adopted the general attitude that it is not enough for landowners and developers to show that what they want to do with a specific property is reasonable.
"Now, if what the property owner wants to do is reasonable and what the local government wants to do is reasonable, the local government prevails," BeVier said last week. "If there's more than one reasonable way of using a property, then the property owner has to prove that what the government wants to do is affirmatively unreasonable."
While acknowledging the turnaround in the high court's sentiment, BeVier noted that the cases decided in recent years have tended to be "much more sympathetic in their facts" to local governments compared to the earlier cases. "The cases the court got in the '70s were hard cases on their facts for the localities to win. They seemed to be very ambitious land use plans, particularly in Fairfax County and Williamsburg."
Audrey Moore, a Fairfax supervisor who has long fought for more stringent growth controls in the county, conceded that in the early 1970s Fairfax tried several times to turn down zoning requests without basing such actions on the county's master plan. "I knew there was no court in the world that would accept that," she said.
By the same token, she said that Fairfax officials "never put the effort" into defending its actions in court suits that it did in the Occoquan case. "You just can't send in a fifth assistant county attorney and one witness and hope to win," Moore said.
Brion, a visiting professor at Boston College law school this year, conceded that there is a "general view that there's been a shift" in judicial sentiment about land use cases. But, he said, "I'm perhaps a minority of one, but I'm not willing to say anything's changed."
He said that recent decisions favoring local governments have tended to center on disputes over individual tracts of land or over commercial development, rather than large-scale residential construction proposals.
In Brion's view, the Occoquan case "would be a bellwether if it were to go to the Supreme Court." But as it stands now, neither Fairfax County nor the landowners who sued are planning to appeal Fitzpatrick's verdict.
Brion described attempts to interpret the latest Virginia land use decisions as "tea leaf reading, and it's tea leaf reading because courts always have the power to strike out in a new direction."