Agenda - Planning Commission - 12/02/2010

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Zoning Bulletin October 25, 2010 !Volume 4 ! No. 20 bers "discussed the fact that they did not want to prohibit all diesel sales" on the 3.4-acre parcel as proposed in the proffer. The Board members then verbally amended the proffer to prohibit only "[a]ny use involving the retail or wholesale sale of diesel fuel for over the road truck carriers." After the Board members approved the rezoning, the Sempeles signed the amended proffer. Two years later, T.P. Manning and Arogas, Inc. (collectively, "Aro- gas") sought to develop the 3.4-acre parcel owned by the Sempeles. (That parcel was subsequently deeded to Arogas in 2007.) Arogas wanted to build a service station and convenience market on the par- cel. The service station was to sell gasoline and diesel fuel. Arogas, through its engineer, submitted a proposed site plan to the county plan- ning department (the "Department"). The Department informed Arogas that it would not process the site plan application. This was because of a "discrepancy between the pro- posed use of [the] property and the property's current zoning designa- tion and associated proffers." Arogas then, in a court action, alleged that the amended proffer was invalid. It argued this was because the Sempeles had not submitted the amended proffer to the Board five days before a public hearing —as re- quired by county code § 165-13(A). Section 165-13(A) provided that an applicant for rezoning "may proffer in writing, before the public hearing by the [Board], conditions to be placed on approval of the rezoning." Section 165-13(A) also required such proffers be received "at least five (5) days prior to the advertised hearing ...." The Sem- peles, argued Arogas, had only submitted the original proffer —not the amended proffer —and thus the amended proffer was invalid. The circuit court entered judgment in favor of the Board. Arogas appealed. DECISION: Affirmed. The Supreme Court of Virginia held that the Board was not required to hold an additional public hearing to amend the rezoning original proffer after the public hearing was closed. In so concluding, the court acknowledged that § 165-13(A) re- quired a proffer be received five days prior to a public hearing. How- ever, the court found that the "plain language" of § 165-13(A) did not "mandate that an additional public hearing ... be held to consider a proffer that the [Board] amends after the initial public hearing." The court also pointed to code § 165-11, which related to public hearings of the Board. Section 165-11 permitted the Board to, after a public hearing, "make appropriate changes or corrections in the proposed m 2010 Thomson Reuters 5 59