County of Fairfax v. Parker

44 S.E.2d 9, 186 Va. 675, 1947 Va. LEXIS 190
CourtSupreme Court of Virginia
DecidedSeptember 3, 1947
DocketRecord No. 3257
StatusPublished
Cited by36 cases

This text of 44 S.E.2d 9 (County of Fairfax v. Parker) 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
County of Fairfax v. Parker, 44 S.E.2d 9, 186 Va. 675, 1947 Va. LEXIS 190 (Va. 1947).

Opinion

Eggleston, J.,

delivered the opinion of the court.

On February 5, 1941, the Board of Supervisors of Fair-fax county, pursuant to the General County Zoning Act of 1938 (Acts 1938, ch. 415, p. 777, Michie’s Code of 1942, [677]*677section 2880mm ff.),1 adopted a comprehensive zoning ordinance which became effective on March 1, 1941.

By the terms of the ordinance the entire area of the county, consisting of 417 square miles, was divided into seven districts, denominated: “Agricultural Districts;” “Rural Residence Districts;” “Suburban Residence Districts;” “Urban Residence Districts;” “Rural Business Districts;” “General Business Districts;” “Industrial Districts.” The location and boundaries of each district were shown on the zoning map attached to and made a part of the ordinance.

After the effective date of the ordinance, L. W. Parker, the appellee, acquired an unimproved lot, containing .736 of an acre, situated on the northerly side of the Leesburg Pike, just west of Tyson’s Corner. This lot is located in that area of the county which is zoned and classified in the ordinance as a “suburban Residence District.” The uses permitted in such a district are thus defined in the ordinance:

[678]*678“A. Use Regulations: In a Suburban Residence District no building or structure shall be erected, altered, or used, and no land shall be used unless otherwise provided in this ordinance except for one or more of the following uses:

“1. Any use permitted in the Rural Residence District and subject to the same condition in each case as set forth in Section IV, A.”

A “Rural Residence District,” embraced by the reference and defined in Section IV, A, is subject to the regulation that “no building or structure shah be erected, altered, or used, and no land shall be used unless otherwise provided in this ordinance, except for one or more of the following uses: ”

Then follow fifteen classes of permitted uses, including “single family detached dwelling,” “customary home occupations,” “private garage,” “private stable,” “private summer cottages,” “truck gardens,” “farming, dairy farming, livestock and poultry raising,” “tourists homes,” “churches, parish houses and Sunday Schools,” “public and parochial schools,” “public and private parks.”

[679]*679Except as stated, the list of permitted uses does not include a business or commercial use.

On or about January 1, 1946, Parker, the appellee, began to use his lot as a junk yard or “dumping ground” for brokendown motor vehicles, motor vehicle parts and accessories. Notwithstanding the admonition and protest of the proper authorities of the county, he declined to discontinue such use of the land.

Thereupon the county and the Board of Supervisors filed their bill in the court below, alleging the facts which we have detailed. It was further alleged that the use to which Parker was putting the lot was in violation of the terms of the ordinance. In substance, the prayer of the bill was that the defendant be enjoined and restrained from the further use of the lot in contravention of the provisions of the ordinance.

By a demurrer Parker, the defendant, challenged the validity of the ordinance. He asserted that it was unconstitutional arid void; that it deprived him of his property without due process of law, in violation of the Constitution of Virginia, section 11, and the Fourteenth Amendment of the Constitution of the United States; that similarly it deprived “all other landowners in the county of Fairfax” of their properties without due process of law; and that the method in which the Board of Supervisors had divided the county into zones was arbitrary and capricious and in no way promoted the health, safety, order, prosperity, and general welfare of the citizens and property owners of the county.

Moreover, the demurrant said, the ordinance exceeded the power granted to the Board of Supervisors by the General County Zoning Act of 1938 (Acts 1938, ch. 415, p. 777, supra).

The lower court entered a decree sustaining the demurrer and dismissing the bill, and from this decree the county and the Board of Supervisors have appealed.

Much space in the brief of the appellee is devoted to criticisms of the ordinance with which we are not now [680]*680concerned. These denunciations range from the lack of need for the adoption of any zoning ordinance by the county authorities, to the unreasonableness of various restrictions applicable to the respective districts therein.

Whether the entire area of the county should have been zoned is a matter which the General Assembly, through the enabling act, has delegated to the local legislative body,2 the County Board of Supervisors. It is a legislative matter with which we are not concerned. Zahn v. Board of Public Works, 274 U. S. 325, 328, 47 S. Ct. 594, 71 L. Ed. 1074; Standard Oil Co. v. Marysville, 279 U. S. 582, 584, 49 .S. Ct. 430, 73 L. Ed. 856.

While the reasonableness of the restrictions imposed in the several districts is subject to judicial review, yet under familiar principles of constitutional law the appellee is concerned only with those which affect his rights. It does not lie in his mouth to say, nor will he be heard to complain, that the rights of others are adversely affected by the provisions of the ordinance. Gorieb v. Fox, 274 U. S. 603, 606, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A. L. R. 1210. See also, Grosso v. Commonwealth, 177 Va. 830, 839, 13 S. E. (2d) 285, 288, and cases there cited. Hence, our present inquiry is limited to whether this ordinance trespasses on the rights of the appellee.

The benefits of proper zoning laws are everywhere recognized. We need not stop to detail them. Neither is it necessary that we restate the principles governing the validity of such laws. Suffice it to say that if reasonable they are construed to be a lawful exercise of the State’s police power. If their reasonableness is fairly debatable, the legislative judgment stands. For a discussion of the underlying principles see Euclid v. Ambler Realty Co., 272 U. S. [681]*681365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; West Bros. Brick Co. v. Alexandria, 169 Va. 271, 192 S. E. 881.3

In each of the last-named cases the right of the local legislative body to exclude an industrial use of land from an area which had been zoned for residential purposes was sustained. _ Similarly, in the case now before us the effect of the ordinance is to exclude an industrial use, such as a junk yard, from a district zoned for suburban residence use.

There is no claim that such exclusion of use is fundamentally improper. That it is reasonable requires no extended argument. As was said in Euclid v. Ambler Realty Co., supra (272 U. S., at page 388): “A nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard.”

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Bluebook (online)
44 S.E.2d 9, 186 Va. 675, 1947 Va. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-fairfax-v-parker-va-1947.