Agenda - Planning Commission - 06/06/2013

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Zoning Bulletin April 25, 2013 I Volume 7 I Issue 8 were nonetheless paid "voluntarily" and were not reimbursable under the common law voluntary payment doctrine. The Background/Facts: Blue Ridge Shadows, LLC ("BRS") owned a tract of land in Warren County (the "Property"). At BRS' request, the Board of Supervisors for Warren County (the "Board") rezoned the Property from agricultural to suburban residential. As part of the rezoning process, BRS made a number of written "proffers" to the Board as inducements for the right to develop the property as a subdivision containing up to 225 residential units. The Board ultimately accepted BRS's "Revised Rezoning Request Proffer" (the "Revised Proffer"), in conjunction with approving BRS's rezoning application. In the Revised Proffer, BRS proposed, among other things, to construct and operate a centrally located wastewater treatment plant and water system to service the residential units within the development. BRS also proposed to "make cash payments in the total amount of $8,000.00 per resi- dential unit" payable each time Warren County (the "County") issued a build- ing permit for one of the units. Subsequent to the Revised Proffer, BRS proposed: (1) that the Board allow BRS to hook-up to the Town of Front Royal's (the "Town") water and sewer services in lieu of BRS constructing the proposed water and sewer systems; and (2) that, in exchange, BRS would pay to the County an additional "hook-up fee" in the amount of $4,000 for "each residential water/sewer hookup obtained" from the Town. The parties never executed an agreement regarding this proposal. The Board, however, voted to allow the development to connect to the Town's water and sewer systems. The Board also voted to amend BRS's Revised Proffer to the County by deleting BRS's obligation to construct such systems for the development. Eventually, D.R. Horton, Inc. ("Horton") purchased the Property from BRS. Horton purchased the Property subject to BRS's Revised Proffer, as amended by the deleted obligation to construct the water and sewer systems. Between May 2006 and January 2010, the County issued to Horton a total of 52 building permits. For each permit, Horton paid to the County a "proffer fee" of $12,000, amounting to $4,000 more than the $8,000 fee set forth in the Revised Proffer. Horton paid the additional $4,000 fee under protest, stating: it did not believe it was obligated to pay the fee pursuant to the terms of the Revised Proffer; that it would pay the fee "until this matter has been resolved" in order "to avoid further damage to [Horton]"; and that it was paying the fee "only under protest and with a full reservation of its rights and remedies." In 2007, Horton obtained a declaratory court judgment, which held that Horton was not obligated to pay the $4,000 "hook-up" fees to the Town. In 2008, Horton sued the Board, seeking reimbursement of $104,000— constituting the total in $4,000 fees paid on its first 26 building peuruits. As an affirmative defense, the Board raised the voluntary payment doctrine. The voluntary payment doctrine, as established under Virginia common law, provides that: Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, [i] without an immediate and urgent necessity therefor, or [ii] unless to release his person or property from detention, or [iii] to ©2013 Thomson Reuters 3