Board of Supervisors v. Gaffney
9 Va. Law Rep. 539, 422 S.E.2d 760, 244 Va. 545 (1992)
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Rule of Law:
Under an inclusive zoning ordinance, which permits only those uses specifically named, any use not explicitly listed as permitted by right or by special permit is prohibited. The burden is on the property owner to demonstrate that their proposed use falls within a specifically enumerated permitted category.
Facts:
- L. Patrick Gaffney, Jr., Phyllis J. Gaffney, and Leighton B. Brown (landowners) own approximately 200 acres of land in Madison County, which is zoned as 'Conservation, C-1'.
- On a portion of their property, the landowners operate a commercial nudist club with 170 paying members, which generated a profit.
- Club members and their guests participate in activities such as volleyball, swimming, hiking, and picnics while nude.
- The site includes facilities such as a solar shower, a swimming pond, hiking trails, barbecue pits, campsites, and an outhouse.
- Neighbors complained to the Board of Supervisors of Madison County after observing nude persons on the landowners' property from adjacent properties and a public highway.
- The landowners disputed these claims, asserting that little could be seen from neighboring properties with the unaided eye.
- In 1987, the landowners obtained a special use permit for a campground and lodge without disclosing their intent to operate a nudist club.
Procedural Posture:
- The Madison County planning commission granted the landowners a special use permit in 1987.
- The Board of Supervisors revoked the special use permit in 1989 after learning the landowners were operating a nudist club.
- The landowners filed suit, and a trial court held the revocation was invalid on procedural grounds.
- The Board of Supervisors then filed a petition in the trial court seeking an injunction to stop the landowners from operating the nudist club, alleging a zoning violation.
- After a bench trial, the trial court denied the injunction, ruling that the use of the property as a nudist club was consistent with its 'Conservation, C-1' zoning status.
- The Board of Supervisors of Madison County (appellant) appealed the trial court's denial of the injunction to the Supreme Court of Virginia.
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Issue:
Does the operation of a private nudist club on property zoned as 'Conservation, C-1' qualify as a 'preserve and conservation area,' a use permitted by right under an inclusive county zoning ordinance that prohibits any use not specifically permitted?
Opinions:
Majority - Justice Hassell
No. The operation of a nudist club on property zoned 'Conservation, C-1' does not qualify as a 'preserve and conservation area' and is therefore prohibited. The Madison County zoning ordinance is an 'inclusive' type, which means that any use not specifically listed as permitted is prohibited. The operation of a nudist club is not an enumerated use permitted by right in the Conservation, C-1 district. The landowners failed to meet their burden of proving that their proposed use is permitted under the ordinance's plain language.
Concurring - Justice Whiting
Agrees with the result but criticizes the majority's opinion. He concurs with Justice Keenan's reasoning that the use classification ('nudist club') is invalid because it has no nexus with the physical use of the land. He also argues that the majority engaged in an erroneous treatment of facts on appellate review by crediting witness testimony that contradicted the trial court's implicit factual findings, which should have been viewed in the light most favorable to the landowners who prevailed at trial.
Concurring - Justice Keenan
Agrees with the result but disagrees with the majority's analysis. The proper focus of a zoning ordinance is the physical use of the land, not the state of attire of the people on it. The land use should be characterized as a 'private, recreational facility,' not a 'nudist club.' Labeling it a 'nudist club' is an invalid use classification because it lacks a nexus to the land itself. However, a 'private, recreational facility' is not a 'preserve and conservation area,' and is therefore still an unlisted, prohibited use under the inclusive ordinance.
Analysis:
This decision reaffirms the principle that courts will strictly construe 'inclusive' zoning ordinances, placing a heavy burden on landowners to fit their proposed activities into a pre-approved category. The case is significant for the tension between the majority and concurring opinions regarding the proper basis for land use classification. While the majority implicitly accepts classifying a use based on the nature of the activity ('nudist club'), the concurrence argues for a classification based solely on the activity's physical impact on the land ('recreational facility'), setting the stage for future legal challenges over whether a use can be prohibited based on the conduct of its users rather than its tangible land-use characteristics.
