Agenda - Planning Commission - 06/06/2013

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April 25, 2013 I Volume 7 1 Issue 8 Zoning Bulletin prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party at the time of making the payment, files a written protest, does not make the payment involuntary. The court agreed with the Board. It held that Horton was barred from being awarded reimbursement of the unlawful fees because it paid them "volunta- rily" within the meaning of the voluntary payment doctrine. Horton appealed. DECISION: Affirmed. The Supreme Court of Virginia also held that Horton was barred from be- ing awarded reimbursement of the unlawful fees because it paid them "volun- tarily" within the meaning of the voluntary payment doctrine. On appeal, Horton had made four arguments for why its payment of the subject fees was involuntary so as to negate the Board's voluntary payment defense. Horton argued that it paid the fees involuntarily because the County's refusal to issue the building permits without payment of the fees constituted a seizure of a property right consisting of Horton's right to develop the subdivision. The court disagreed. It held that there was no seizure of a prop- erty right effected by the County's unlawful demand for fee payments as Horton did not in any way "los[e] the right to develop its property" as a result of that demand; and indeed Horton proceeded with development. Next, Horton asserted that it paid the fees involuntarily because it faced criminal charges if it proceeded without obtaining the permits from the County, or, alternatively, it faced breach of contract actions by third parties if it refused to go forward with its residential construction to avoid paying the fees. The court also rejected this claim. The court found no evidence that the County was threatening Horton with any criminal action or that Horton had executed any contract with a third party for construction of a residence in the subdivision. Furthermore, neither circumstance could be considered under the voluntary payment doctrine as a basis for establishing an involuntary payment without Horton showing as a threshold matter that there was an "immediate and urgent necessity" for paying the County's unlawful demand —which the court found was lacking. For its third argument, Horton asserted that an immediate and urgent need to pay the fees rendered its payments involuntary. Horton contended that need was because it had to "do what it could to build and sell houses," which included paying the fees to obtain the permits authorizing their construction. The court again rejected Horton's argument. The court explained that to estab- lish the requisite necessity to pay an unlawful demand, Horton had to show that it "had no time or opportunity before paying the County's unlawful demand to at least seek an appropriate legal remedy." The court found Horton failed to do so; Horton could have sought injunctive relief any time during the three and a half year period over which it paid the fees. Finally, for its fourth argument, Horton contended that it had adequately protested the assessment of the fees. Rejecting that argument, the' court noted that "simply protesting an unlawful demand does not render payment of the demand involuntary under the voluntary payment doctrine." 4 ©2013 Thomson Reuters