JEFFERSON GREEN UNIT OWNERS v. Gwinn

551 S.E.2d 339, 262 Va. 449
CourtSupreme Court of Virginia
DecidedSeptember 14, 2001
Docket002574
StatusPublished
Cited by6 cases

This text of 551 S.E.2d 339 (JEFFERSON GREEN UNIT OWNERS v. Gwinn) 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
JEFFERSON GREEN UNIT OWNERS v. Gwinn, 551 S.E.2d 339, 262 Va. 449 (Va. 2001).

Opinion

551 S.E.2d 339 (2001)
262 Va. 449

JEFFERSON GREEN UNIT OWNERS ASSOCIATION, INC.,
v.
Jane W. GWINN, Fairfax County Zoning Administrator, et al.

Record No. 002574.

Supreme Court of Virginia.

September 14, 2001.

*341 Mark P. Freidlander, Jr. (Barbara Beach; Friedlander & Friedlander; Beach & Associates, on briefs), McLean, for appellant.

Cynthia A. Bailey, Assistant County Attorney (David P. Bobzien, County Attorney; J. Patrick Taves, Deputy County; Jan L. Brodie, Senior Assistant County Attorney, on brief), for appellees.

Present: All the Justices.

KINSER, Justice.

This appeal involves the question whether a zoning proffer that provides recreational facilities by requiring payment of membership dues in a private recreational association violates the constitutional provision prohibiting special legislation and infringes upon "freedom of association." Although we conclude that the circuit court erred in finding the proffer unconstitutional, we will affirm the court's judgment requiring a condominium unit owners association to re-establish its membership in the recreational facility and to pay membership dues. We also conclude that the circuit court correctly determined that the proffer does not violate the limitation in Code § 15.2-2297(A)(v).

I. FACTS AND MATERIAL PROCEEDINGS

Jefferson Green Unit Owners Association, Inc. (Jefferson Green), is a condominium unit owners association whose membership is comprised of the owners of condominiums in the complex known as Jefferson Green Condominium, which is located in Fairfax County. In 1976, the Fairfax County Board of Supervisors (the Board) approved a rezoning application for the parcel of land upon which the condominium complex is situated. The application included voluntary, written proffers by the owner of the property. The Board accepted those proffers pursuant to the authority granted in former Code § 15.1-491(a). Included in the proffers was a condition that "there will be provided, at the time of construction of the project, not less than the on-site recreational facilities shown on the Development Plan, including tot lot, multi-purpose court and swimming pool complex...."

In 1981, the developer, who had purchased the subject property in 1979, submitted a proffered condition amendment (PCA) seeking further changes in the development plan approved for the condominium complex. In pertinent part, Proffer No. 3 addressed the requirement of on-site recreational facilities:

In substitution for the on-site recreation facilities previously proffered the following will be provided:
a. Pursuant to agreement with the Bren Mar Park Recreation Association, rehabilitation of the facilities of that Association within 180 days of approval of this application.
b. Purchase of one membership in the Association for each dwelling unit in this development, and provision of these memberships at no charge to each individual unit and/or the condominium association associated therewith, in accordance with the Virginia Condominium Act, other than annual dues which shall be paid by the condominium unit Owner[s] Association.
c. Funds paid to Bren Mar Park Recreation Association shall be expended for the renovation and improvement of the swimming pool, bath house, tennis courts, and parking lot as determined by the Board of Directors of the Bren Mar Park Recreation Association ....

The Board subsequently approved the developer's PCA, including Proffer No. 3, pursuant to Code § 15.1-491(a).

In accordance with Proffer No. 3, the developer paid the initial membership charge for each condominium unit, and Jefferson Green paid the required annual dues to Bren Mar Park Recreation Association (Bren Mar) until 1999.[1] As a result of Jefferson Green's *342 refusal to pay the 1999 dues, Jane W. Gwinn, Fairfax County Zoning Administrator (the Zoning Administrator), commenced a suit against Jefferson Green. In that suit, the Zoning Administrator sought a declaratory judgment that Jefferson Green was in violation of Proffer No. 3 and Fairfax Zoning Ordinance § 18-204(3).[2] She also asked the circuit court to enter an injunction requiring Jefferson Green to re-establish membership in Bren Mar and to remit all unpaid annual dues. Jefferson Green answered the suit and also filed a cross-bill, requesting the court to declare Proffer No. 3 void as a matter of public policy and in violation of Code §§ 15.2-2297 and -1102.

After considering the parties' memoranda and argument, the circuit court determined that Code § 15.2-2297 does not apply to Fairfax County and that, therefore, Proffer No. 3 does not violate subsection (A)(v) of that statutory provision. However, the court concluded that Proffer No. 3 is "private legislation" that "create[s] the type of economic favoritism strictly forbidden by the special-law prohibitions of the Virginia Constitution." The court also stated that Proffer No. 3 is tantamount to "forced association" and that a compelling governmental interest had not been established to justify the government's "dictat[ing] membership into a private organization." Nevertheless, the circuit court held that Proffer No. 3 "must be enforced because Jefferson Green requested and/or consented to [its] adoption" by virtue of its status as the successor-in-interest to the developer who had asked for the zoning amendment and submitted Proffer No. 3. The court concluded that the developer's consent is binding on Jefferson Green and waived any attack on the constitutionality of Proffer No. 3.

In an order incorporating its letter opinion, the circuit court found Jefferson Green in violation of Proffer No. 3. Accordingly, the court directed Jefferson Green to re-establish membership in Bren Mar, to pay and to continue to pay all membership dues owed to Bren Mar, and to refrain from any future violation of Proffer No. 3. The court also dismissed Jefferson Green's cross-bill with prejudice.

II. ANALYSIS

Jefferson Green assigned three errors to the circuit court's decision, and the Zoning Administrator filed two assignments of cross-error. We will address only Jefferson Green's assignment of error regarding the court's finding that Code § 15.2-2297 does not apply to Fairfax County and the Zoning Administrator's assignment of cross-error challenging the court's conclusion that Proffer No. 3 is unconstitutional.

A. CODE § 15.2-2297

When the property upon which Jefferson Green is situated was rezoned in 1976, Code § 15.1-491(a) allowed counties in which the urban county executive form of government was in effect to adopt, as part of an amendment to a zoning map, reasonable conditions that had been proffered in writing by the owner of the property which was the subject of the proposed zoning map amendment.[3] In 1978, the General Assembly enacted Code § 15.1-491.2 as part of the 1978 Va. Acts ch. 320.[4] That Code section provided that a zoning ordinance may include voluntary written proffers by the owner of the subject property as part of a rezoning or amendment to a zoning map, but subsection (v) of Code § 15.1-491.2 prohibited the acceptance of a proffer containing a condition *343 that required "payment for or construction of off-site improvements." However, Clause 2 of the 1978 Va. Acts ch. 320 stated:

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Bluebook (online)
551 S.E.2d 339, 262 Va. 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-green-unit-owners-v-gwinn-va-2001.