U-Haul Real Estate Co. v. City Council of Falls Church, 2017 Va. Unpub. LEXIS 36 (Va. Dec. 28, 2017)
U-Haul Real Estate Company (“U-Haul”) owned property in the City of Falls Church. The land adjacent to U-Haul was owned by Northern Virginia Regional Park Authority (“NVRPA”). This land boarded a stream bed and, due to their proximity to the stream, a portion of U-Haul’s property and nearly all of NVRPS’s property are located within a resource protection area (“RPA”), as designated by the Falls Church City Code (“City Code”).
In 2013, U-Haul began a project to repave a 1,94-square foot portion of its parking lot, 1,670 square feet of which was within the RPA. Neither U-Haul nor the contractor submitted a site plan to the City or obtained a permit before commencing the project. An inspector for the City eventually noticed that debris was being deposited onto and over the stream bank on NVRPA’s property. The City issued a stop work order, then proceeded to inform U-Haul that the order would be lifted only after U-Haul submitted a site plan that complied with (1) the City’s “stormwater” requirements to restore NVRPA’s land in the RPA, and (2) all other requirements applicable to U-Haul’s original repaving project.
The City sent a letter to U-Haul stating that the Department of Public Works viewed U-Haul’s draft plan as sufficient to begin restoration work in the RPA. U-Haul completed the restoration work but did not submit an edited site plan because, in its view, such a plan was not required to repave a small portion of its parking lot.
It requested a ruling from the Zoning Administrator, who determined that City Code §§ 48-1134(a)(1) and (5) required a site plan. U-Haul then appealed to the Board of Zoning Appeals (“BZA”), which reversed the Zoning Administrator’s decision. The circuit court reversed the BZA’s decision because City Code § 1134(a)(5) required U-Haul to obtain a site plan because its project “disturbed” in excess of 2,500 square feet and constituted a “development” in a RPA.
The Supreme Court of Virginia reversed. Although under City Code § 1134(a)(5) a site plan is required for any disturbance of land exceeding 2,500 square feet and all development or redevelopment in a RPA, neither element applied to the facts of this case. U-Haul’s project was limited to repaving a 1,941-square foot portion of its parking lot. Furthermore, U-Haul did not own any of NVRPA’s property, and NVRPA did not agree for any of its property to be used in U-Haul’s project. Thus, only a 1,941-square foot section for was at issue, which was not large enough to trigger a the site plan requirement.
The Court moved on to the second criteria under the statute which mandated a site plan if the project constitutes a “development” in a RPA. The Court concluded that U-Haul’s project did not result in new or differing characteristics on its property. It was merely replacing the old asphalt with new asphalt, thus maintaining the property’s already existing characteristics. Such maintenance did not constitute a “development” under City Code.