Richardson v. City of Suffolk

Present: All the Justices
MARY RICHARDSON, ET AL.
v. Record No. 960372 OPINION BY JUSTICE ELIZABETH B. LACY
November 1, 1996
CITY OF SUFFOLK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
This appeal involves a challenge to a zoning ordinance
granting a conditional use permit for the operation of an
automobile racetrack in the City of Suffolk.
Following a public hearing, the City of Suffolk enacted two
zoning ordinances. The first ordinance, No. 1-95, rezoned 65
acres of land owned by UA Associates from an agricultural use
classification to B-2, General Business. The second ordinance,
No. 2-95, granted UA Associates a conditional use permit allowing
the 65 acres of land to be used for an automobile racetrack
subject to a number of conditions.
Mary Richardson and other citizens of the cities of Suffolk
and Chesapeake (collectively "the citizens") filed this
declaratory judgment action seeking a determination, inter alia,
that Ordinance No. 2-95 was invalid because an automobile
racetrack is not a use for which a conditional use permit could
be granted in the B-2 General Business district. Following an
ore tenus hearing, the trial court determined that the ordinance
was valid and dismissed the motion for declaratory judgment. We
awarded the citizens an appeal to consider the validity of
Ordinance No. 2-95 granting the conditional use permit.
Ordinance No. 2-95 was enacted pursuant to Suffolk City Code
§ 31-445.4(i) which permits the granting of a conditional use
permit in a B-2 district for:
Commercial recreational uses including bowling alleys,
miniature golf, golf driving ranges, pool halls,
billiard parlors, dance halls, penny arcades and
similar forms of public amusement.
The citizens argue that this section is an "inclusive ordinance"
which only allows those uses specifically named and prohibits all
others. Wiley v. County of Hanover, 209 Va. 153, 163 S.E.2d 160(1968). Applying the "associated words" principle of statutory
construction, the citizens conclude that an automobile racetrack
is prohibited because it is not similar in nature to the uses
identified in City Code § 31-445.4(i). The dissimilarities cited
by the citizens include the spectator rather than participatory
nature of the proposed facility as well as its size. In
asserting these arguments, the citizens fail to address critical,
long-standing principles applicable to judicial review of zoning
ordinances.
When, as here, a city council reserves to itself the right
to issue a conditional use permit, action on a request for such a
permit is a legislative function. Bollinger v. Bd. of
Supervisors, 217 Va. 185, 186, 227 S.E.2d 682, 683 (1976); Byrum
v. Bd. of Supervisors, 217 Va. 37, 40, 225 S.E.2d 369, 372
(1976). Judicial review of the grant of a conditional use permit
follows the same standards applicable to review of any local
governing body's legislative zoning decision. City Council of
Virginia Beach v. Harrell, 236 Va. 99, 102, 372 S.E.2d 139, 141
(1988); Fairfax County v. Southland Corp., 224 Va. 514, 522, 297
S.E.2d 718, 722 (1982). The legislative zoning decision is
presumed to be valid. If the presumptive validity of the
decision is challenged by probative evidence that it was
unreasonable, the governing body is required to produce
sufficient evidence of reasonableness to make the issue fairly
debatable. If the issue is fairly debatable, the local governing
body's legislative zoning decision must be sustained. Id. at
522-23, 297 S.E.2d at 722.
In this case, the citizens have not challenged the
conditional use permit as unreasonable, but assert that rules of
statutory construction preclude the result reached by the city
council. Assuming this argument qualifies as sufficient
probative evidence that the city council's action was
unreasonable, we think the city council has met its burden of
producing sufficient evidence of reasonableness to make the issue
fairly debatable.
The proposed automobile racetrack qualifies as a commercial
recreational activity. City Code § 31-445.4(i) clearly
anticipates uses in addition to those specifically listed. City
Code § 31-445.1 states that the B-2 zoning classification is
intended to apply to lands which by virtue of "their
accessibility to arterial roadways and utilities" and
relationship to defined market areas are "well suited" to provide
commercial services and "are intended to serve larger commercial
markets." Uses permitted as a matter of right in the B-2
district include such activities as theatres, parking lots,
restaurants, hotels, motels, hospitals, schools, and colleges.
City Code § 31-445.2. Furthermore, the city granted the permit
subject to a number of restrictions such as limiting the races to
certain days of the week, times of the year, and time of day,
requiring that the area be screened, and requiring city approved
litter, traffic, and security controls.
This evidence of the reasonableness of the city council's
action is sufficient to make the issue whether an automobile
racetrack is a permitted use under City Code § 31-445.4(i) fairly
debatable. Because the issue is fairly debatable, the city's
zoning decision must be sustained.
Accordingly, we will affirm the judgment of the trial court.
Affirmed.
JUSTICE HASSELL, with whom CHIEF JUSTICE CARRICO joins,
dissenting.
I dissent because I am of opinion that the City of Suffolk
has violated its own zoning ordinance, which states in relevant
part:
"Conditional uses. The following uses are
permissible in B-2 districts subject to the provisions
of Article VIII [conditional use permit regulations]:
. . . .
(i) Commercial recreational uses including
bowling alleys, miniature golf, golf driving
ranges, pool halls, billiard parlors, dance
halls, penny arcades and similar forms of
public amusement."
I agree with the majority that the decision to grant or deny
a conditional use permit is a legislative act. However, the
City's legislative prerogatives are not unlimited and, in the
exercise of such power, the City must comply with its own
ordinance. Here, the City's ordinance places certain
restrictions upon the City's power to grant conditional use
permits; among those restrictions is the provision, one the City
voluntarily chose to impose upon itself, limiting the type of
commercial recreational uses permissible in B-2 districts.
We have applied the doctrine of noscitur a sociis when
interpreting statutes as well as ordinances:
"[W]hen general and specific words are grouped, the
general words are limited by the specific and will be
construed to embrace only objects similar in nature to
those things identified by the specific words."
Martin v. Commonwealth, 224 Va. 298, 302, 295 S.E.2d 890, 892
(1982); accord Commonwealth v. United Airlines, 219 Va. 374, 389,
248 S.E.2d 124, 132-33 (1978); Cape Henry v. National Gypsum, 229
Va. 596, 603, 331 S.E.2d 476, 481 (1985). Applying this
doctrine, I am of the view that there is simply no degree of
similarity between bowling alleys, miniature golf, golf driving
ranges, pool halls, billiard parlors, dance halls, penny arcades,
and an automobile race track with a seating capacity of 7,500
which, undoubtedly, will cause noise and disruption adjacent to a
residential neighborhood.