City of Covington v. APB Whiting, Inc.

360 S.E.2d 206, 234 Va. 155, 4 Va. Law Rep. 556, 1987 Va. LEXIS 256
CourtSupreme Court of Virginia
DecidedSeptember 4, 1987
DocketRecord No. 840927
StatusPublished
Cited by2 cases

This text of 360 S.E.2d 206 (City of Covington v. APB Whiting, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Covington v. APB Whiting, Inc., 360 S.E.2d 206, 234 Va. 155, 4 Va. Law Rep. 556, 1987 Va. LEXIS 256 (Va. 1987).

Opinion

THOMAS, J.,

delivered the opinion of the Court.

The central issue in this appeal is whether the Covington City Council’s decision to deny APB Whiting, Inc.’s (Whiting) application to rezone a certain parcel of land was fairly debatable. Whiting applied to rezone the parcel of land from residential to commercial. The local planning commission voted in favor of the rezoning. The city council, by a tie vote, denied the rezoning. Whiting filed a declaratory judgment action in the trial court. The trial court ordered the rezoning. The city appeals; we reverse.

The pertinent events began in 1982. At that time, Whiting owned property designated as Lot No. 14, at the intersection of East Madison Street and Carpenter Drive in the Fairlawn subdivision in the City of Covington. Lot 14 was zoned commercial and was the site of a service station. South of Lot 14 along Carpenter Drive was Lot 13A, which had 25 feet of frontage on Carpenter Drive. Next to Lot 13A, to the south, was Lot 13, which had 41 feet of frontage on Carpenter Drive. Lot 12 had 50 feet of front[157]*157age on Carpenter Drive. There was a home on Lot 11. Lot 12 served as the side yard to the house on Lot 11. Lots 12, 13, and 13A were vacant. Thus, 116 feet of vacant land lay between the boundaries of commercial Lot 14 and residential Lot 11. Whiting owned Lots 14, 13A, and 13.

In November 1982, a local bank requested a building permit to construct an automatic drive-in teller machine on portions of Lot 14 and 13A. The Covington Building and Zoning Administrator consulted a 1975 map in his office and concluded therefrom that Lot 13A was zoned commercial; he granted the building permit. Thereafter, upon receipt of a citizen’s complaint concerning the construction, the administrator re-checked his records and concluded that Lot 13A was zoned residential; he revoked the building permit.

On February 15, 1983, a new zoning ordinance went into effect in Covington. It showed Lot 14 as commercial and Lots 13A and 13 as residential. By application filed March 2, 1983, Whiting requested that Lots 13A and 13 be rezoned from residential to commercial.

The matter was referred to the Covington Planning Commission. The commission heard testimony on both sides of the issue. It recommended, by a 5-2 vote, that Lot 13A be rezoned commercial. It recommended, by unanimous vote, that Lot 13 remain residential.

The matter was then considered by the city council on April 12, 1983. There, petitions signed by 90 residents who lived near the property and opposed the rezoning were presented to the council. The opposition by the petitioners was based on a concern for their property values. One witness expressed concern that the rezoning would open the area to other businesses and create traffic problems. The mayor was concerned about encroachment upon the residential area and the danger of setting a precedent. Conditional zoning of the property was discussed. However, a representative of Whiting stated that his company did not want conditional zoning. He asked that the application be granted as presented. The council voted 2-2. However, because a petition of protest had been signed by a majority of the residents, a three-fourth’s vote of the five-member council was required for adoption of the rezoning. The application failed.

Whiting then filed a declaratory judgment action to secure the rezoning of Lots 13 and 13 A. A hearing was held on November 9, [158]*1581983. Dennis Murphy, a manager for Whiting, testified that as long as the property was zoned residential it had no value for Whiting.

Two expert witnesses testified on Whiting’s behalf. The first witness said Lot 13A must be combined either with Lot 14 to the north or Lot 13 to the south in order for it to be used. He said Lot 13A had no value by itself. He testified further, however, that if Lot 13A were “aggregated” with Lot 13, the frontage would be only 66 feet, while the zoning ordinance required a 75-foot lot with a 15-foot side yard for the construction of a home. As a result, according to the witness, a zoning variance would be required before a home could be built on Lots 13 and 13A used together.

On a separate point, the witness admitted that the intersection at which the property is located was very busy. He said this was good for commercial property but bad for residential property.

Whiting’s other expert witness said that by itself, Lot 13A had value only as a garden spot. He placed that value at $1,000. He said that if Lot 13A were “aggregated” with Lot 14 it would be worth $10,000. He stated further that rezoning Lot 13A would not adversely affect nearby property but that rezoning Lot 13 would have a negative effect on adjacent residential property. He also testified that even if Lot 13A were rezoned, there would be a 91 foot buffer between Lot 13A and Lot 11 which is the next lot on which a house is located. He suggested that Lot 13A should be rezoned commercial because no one would want to build a nice house on Lots 13-13A since it was next door to Lot 14 which contained a gas station.

The same expert admitted further, however, that Lot 13A could be “aggregated” in either direction, either north with the commercial property or south with the residential property. He also admitted that Lots 13 and 13A could be combined with Lot 12 to make a “nice sized” residential lot.

The city called as witnesses the zoning administrator and the mayor. The zoning administrator testified that the map he relied upon in issuing the building permit was not an official zoning map and further that the map was in error in showing Lots 13 and 13A to be commercial. He testified that he checked the zoning records back to 1957 — when Covington enacted its first ordinance — and concluded that Lots 13 and 13A had always been zoned residential. Further, the zoning administrator made clear that under [159]*159the 1983 ordinance Lots 13 and 13A continued to be listed as residential lots.

The mayor was permitted to testify concerning events which transpired at the council meeting during which the rezoning application was denied. He recounted that conditional zoning had been suggested as a possible alternative approach but that Whiting had rejected this approach requesting instead that its application be voted on in its original form. He stated that the matter was controversial and received “a great deal of consideration” from the council “after a lot of input from many people.” He stated that in his view “the case had merit both ways.” He described the Fair-lawn subdivision as “a desirable area to live in in Covington.” He expressed concern that to rezone might amount to “spot zoning” that would undermine the property values of the homeowners.

The mayor also noted that two other witnesses had testified before council and both had expressed concern about traffic congestion, with one also expressing concern about too much lighting. From his own perspective, the mayor was concerned about the precedent that a rezoning would establish. He considered the prospect an encroachment on the residential area that would lead to erosion of the residential nature of the area. He noted further that the intersection in question was probably “one of the most hazardous in Covington” and was the site of a “lot of traffic accidents.” In his view, putting another facility at that intersection would contribute to the congestion. He was also concerned about the limited view available to motorists leaving the subject property heading south out of Covington.

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Bluebook (online)
360 S.E.2d 206, 234 Va. 155, 4 Va. Law Rep. 556, 1987 Va. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-covington-v-apb-whiting-inc-va-1987.