Preview:

Present:    All the Justices
JEFFERSON GREEN UNIT OWNERS
ASSOCIATION, INC.
v. Record No.  002574    OPINION BY JUSTICE CYNTHIA D. KINSER
September  14,  2001
JANE W. GWINN, FAIRFAX COUNTY
ZONING ADMINISTRATOR, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
This appeal involves the question whether a zoning
proffer that provides recreational facilities by requiring
payment of membership dues in a private recreational
association violates the constitutional provision
prohibiting special legislation and infringes upon  “freedom
of association.”    Although we conclude that the circuit
court erred in finding the proffer unconstitutional, we
will affirm the court’s judgment requiring a condominium
unit owners association to re-establish its membership in
the recreational facility and to pay membership dues.    We
also conclude that the circuit court correctly determined
that the proffer does not violate the limitation in Code
§  15.2-2297(A)(v).
I. FACTS AND MATERIAL PROCEEDINGS
Jefferson Green Unit Owners Association, Inc.
(Jefferson Green), is a condominium unit owners association
whose membership is comprised of the owners of condominiums




in the complex known as Jefferson Green Condominium, which
is located in Fairfax County.    In  1976, the Fairfax County
Board of Supervisors  (the Board) approved a rezoning
application for the parcel of land upon which the
condominium complex is situated.    The application included
voluntary, written proffers by the owner of the property.
The Board accepted those proffers pursuant to the authority
granted in former Code  §  15.1-491(a).    Included in the
proffers was a condition that  “there will be provided, at
the time of construction of the project, not less than the
on-site recreational facilities shown on the Development
Plan, including tot lot, multi-purpose court and swimming
pool complex  .  .  .                                           .”
In  1981, the developer, who had purchased the subject
property in  1979, submitted a proffered condition amendment
(PCA) seeking further changes in the development plan
approved for the condominium complex.    In pertinent part,
Proffer No.  3 addressed the requirement of on-site
recreational facilities:
In substitution for the on-site recreation
facilities previously proffered the following
will be provided:
a.    Pursuant to agreement with the Bren Mar Park
Recreation Association, rehabilitation of the
facilities of that Association within  180 days of
approval of this application.
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b.    Purchase of one membership in the Association
for each dwelling unit in this development, and
provision of these memberships at no charge to
each individual unit and/or the condominium
association associated therewith, in accordance
with the Virginia Condominium Act, other than
annual dues which shall be paid by the
condominium unit Owner[s] Association.
c.    Funds paid to Bren Mar Park Recreation
Association shall be expended for the renovation
and improvement of the swimming pool, bath house,
tennis courts, and parking lot as determined by
the Board of Directors of the Bren Mar Park
Recreation Association  .  .  .
The Board subsequently approved the developer’s PCA,
including Proffer No.  3, pursuant to Code  §  15.1-491(a).
In accordance with Proffer No.  3, the developer paid
the initial membership charge for each condominium unit,
and Jefferson Green paid the required annual dues to Bren
Mar Park Recreation Association  (Bren Mar) until  1999.1    As
a result of Jefferson Green’s refusal to pay the  1999 dues,
Jane W. Gwinn, Fairfax County Zoning Administrator  (the
1 In  1991, Jefferson Green asked the director of
Fairfax County’s zoning evaluation division whether, under
the terms of Proffer No.  3, Jefferson Green could terminate
its membership in Bren Mar.    The director advised Jefferson
Green that the requested action could not be undertaken
without a PCA changing the terms of Proffer No.  3.    In
1996, after Jefferson Green had discontinued its membership
in Bren Mar, Fairfax County’s zoning administrator ordered
Jefferson Green to re-establish that membership and
reiterated that a PCA would be necessary to change the
terms of Proffer No.  3.    Jefferson Green submitted an
application for a PCA in  1997, but the parties dispute
whether that application was ever completed.
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Zoning Administrator), commenced a suit against Jefferson
Green.    In that suit, the Zoning Administrator sought a
declaratory judgment that Jefferson Green was in violation
of Proffer No.  3 and Fairfax Zoning Ordinance  §  18-204(3).2
She also asked the circuit court to enter an injunction
requiring Jefferson Green to re-establish membership in
Bren Mar and to remit all unpaid annual dues.    Jefferson
Green answered the suit and also filed a cross-bill,
requesting the court to declare Proffer No.  3 void as a
matter of public policy and in violation of Code  §§  15.2-
2297 and  -1102.
After considering the parties’ memoranda and argument,
the circuit court determined that Code  §  15.2-2297 does not
apply to Fairfax County and that, therefore, Proffer No.  3
does not violate subsection  (A)(v) of that statutory
provision.    However, the court concluded that Proffer No.  3
is  “private legislation” that  “create[s] the type of
economic favoritism strictly forbidden by the special-law
prohibitions of the Virginia Constitution.”    The court also
stated that Proffer No.  3 is tantamount to  “forced
2 Fairfax Zoning Ordinance  §  18-204(3) provides that
“proffered conditions shall become a part of the zoning
regulations applicable to the property in question, unless
subsequently changed by an amendment to the Zoning Map, and
such conditions shall be in addition to the specific
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association” and that a compelling governmental interest
had not been established to justify the government’s
“dictat[ing] membership into a private organization.”
Nevertheless, the circuit court held that Proffer No.  3
“must be enforced because Jefferson Green requested and/or
consented to  [its] adoption” by virtue of its status as the
successor-in-interest to the developer who had asked for
the zoning amendment and submitted Proffer No.  3.    The
court concluded that the developer’s consent is binding on
Jefferson Green and waived any attack on the
constitutionality of Proffer No.  3.
In an order incorporating its letter opinion, the
circuit court found Jefferson Green in violation of Proffer
No.  3.    Accordingly, the court directed Jefferson Green to
re-establish membership in Bren Mar, to pay and to continue
to pay all membership dues owed to Bren Mar, and to refrain
from any future violation of Proffer No.  3.    The court also
dismissed Jefferson Green’s cross-bill with prejudice.
II. ANALYSIS
Jefferson Green assigned three errors to the circuit
court’s decision, and the Zoning Administrator filed two
assignments of cross-error.    We will address only Jefferson
regulations set forth in this Ordinance for the zoning
district in question.”
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Green’s assignment of error regarding the court’s finding
that Code  §  15.2-2297 does not apply to Fairfax County and
the Zoning Administrator’s assignment of cross-error
challenging the court’s conclusion that Proffer No.  3 is
unconstitutional.
A. CODE  §  15.2-2297
When the property upon which Jefferson Green is
situated was rezoned in  1976, Code  §  15.1-491(a) allowed
counties in which the urban county executive form of
government was in effect to adopt, as part of an amendment
to a zoning map, reasonable conditions that had been
proffered in writing by the owner of the property which was
the subject of the proposed zoning map amendment.3    In  1978,
the General Assembly enacted Code  §  15.1-491.2 as part of
the  1978 Va. Acts ch.  320.4    That Code section provided that
a zoning ordinance may include voluntary written proffers
by the owner of the subject property as part of a rezoning
or amendment to a zoning map, but subsection  (v) of Code  §
15.1-491.2 prohibited the acceptance of a proffer
containing a condition that required  “payment for or
3 Code  §  15.1-491 was repealed in  1997.    The language
pertinent to this appeal contained in Code  §  15.1-491(a)
was re-codified without any relevant changes as Code
§  15.2-2303(A).    Hence, we will refer to Code  §  15.2-
2303(A)
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construction of off-site improvements.”    However, Clause  2
of the  1978 Va. Acts ch.  320 stated:
[T]he provisions of this act shall not be
effective as to those counties, cities or towns
specified in paragraph  (a) of  §  15.1-491[, which
includes counties that have the urban county executive
form of government,] unless and until adopted in whole
or in part by amendment of the zoning ordinance.    The
provisions of this act are permissive and shall not be
construed to limit or restrict the powers otherwise
granted to any county, city or town, nor to affect the
validity of any ordinance adopted by any such county,
city or town which would be valid without regard to
this act.
Since Proffer No.  3 provides for the expenditure of
funds to renovate and improve the off-site recreational
facilities located at Bren Mar, Jefferson Green claims that
Proffer No.  3 violates the prohibition against payment for
off-site improvements contained in  §  15.2-2297(A)(v).    The
Zoning Administrator disagrees and asserts that the
restrictions in  §  15.2-2297(A) do not apply to Fairfax
County.    Instead, the Zoning Administrator contends that
Fairfax County accepts proffers pursuant to Code  §  15.2-
2303, which does not include the limitation at issue.    She
further argues that Fairfax County has never adopted any of
the provisions of Code  §  15.2-2297 or its predecessor
statute, Code  §  15.1-491.2.    We agree with the Zoning
Administrator.
4 Code  §  15.1-491.2 was repealed in  1997 and re-
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As the circuit court noted, it is not disputed that
Fairfax County has adopted the urban county executive form
of government.    Pursuant to the terms of Clause  2 of the
1978 Va. Acts ch.  320, the provisions of that act, which
included former Code  §  15.1-491.2, were not  “effective as
to those counties  .  .  .  [having that form of government]
unless and until adopted in whole or in part by amendment
of the zoning ordinance.”    Thus, the provisions of Code
§  15.1-491.2 did not apply to Fairfax County unless it
adopted them.
In contrast, Code  §  15.2-2303(A), like its predecessor
Code  §  15.1-491(a), which was in effect when the Board
accepted Proffer No.  3, specifically addresses the
acceptance of proffers by counties that have adopted the
urban county executive form of government.    Unlike Code
§  15.2-2297(A),  §  15.2-2303(A) does not contain a
prohibition against payment for off-site improvements.
Neither did former Code  §  15.1-491(a).    Contrary to
Jefferson Green’s position, we do not find any conflict
between the provisions of Code  §§  15.2-2297(A) and  -
2303(A), or between their respective predecessor statutes.
However, Jefferson Green argues that the provisions of
Code  §  15.2-2297(A) control Fairfax County’s acceptance of
codified as Code  §  15.2-2297(A).
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proffers because the county adopted those provisions when
it enacted Article  1, Part  2,  §  1-200(15) of the
Constitution of the Fairfax County Zoning Ordinance.    That
section states, in order  “to promote the health, safety and
general welfare of the public and to implement the adopted
comprehensive plan for the orderly and controlled
development of the County,” the Zoning Ordinance is
designed, among other things,  “to accomplish all other
objectives and exercise all other powers set forth in
Article  7, Chapter  22, Title  15.2 of the Code of Virginia.”
We disagree with Jefferson Green.
Section  1-200 merely recites the purpose and intent of
the Fairfax County Zoning Ordinance.    It is not an
affirmative adoption of any provision of Article  7, Chapter
22, Title  15.2, in particular the limitation in Code
§  15.2-2297(A)(v).    In addition, Article I, Part  4,  §  1-400
of the Fairfax County Zoning Ordinance makes the text of
that ordinance applicable  “to any parcel covered by a
previous grant of zoning with proffered conditions pursuant
to  [Code  §]  15.2-2303  .  .  .                                   .”   (Emphasis added.)
Further evidence of the fact that Fairfax County has
never adopted the provisions of Code  §  15.2-2297(A) is
found in the resolutions accepting the original rezoning in
1976 and the PCA in  1981.    In both instances, the Board
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stated that its approval was pursuant to Code  §  15.1-
491(a), now Code  §  15.2-2303(A).    Thus, we conclude Fairfax
County accepts proffers pursuant to the authority granted
in Code  §  15.2-2303(A), and previously did so under the
provisions of former Code  §  15.1-491(a).    The circuit
court, therefore, did not err in rejecting Jefferson
Green’s argument that Proffer No.  3 violates the limitation
contained in Code  §  15.2-2297(A)(v).
B. CONSTITUTIONALITY OF PROFFER NO.  3
Article IV,  §  14(18) of the Constitution of Virginia
provides that  “[t]he General Assembly shall not enact any
local, special, or private law  .  .  .  [g]ranting to any
private corporation, association, or individual any special
or exclusive right, privilege, or immunity.”5    In
determining whether a particular statute violates this
constitutional prohibition, the Zoning Administrator argues
5 Although this constitutional provision is an express
limitation upon the power of the General Assembly, we have
adjudicated the validity of a county ordinance in W.S.
Carnes, Inc. v. Board of Supervisors,  252 Va.  377,  383-84,
478 S.E.2d  295,  300  (1996), and a county contract in
Concerned Residents of Gloucester County v. Board of
Supervisors,  248 Va.  488,  496-99,  449 S.E.2d  787,  792-93
(1994), in light of the prohibition against special
legislation without addressing the fact that the terms of
Article IV,  §  14(18) speak to the General Assembly.
Obviously,  “[a] municipality cannot be vested with powers
which the General Assembly itself does not possess.”
McClintock v. Richlands Brick Corp.,  152 Va.  1,  23,  145
S.E.  425,  431  (1928).
10




that the critical inquiry is whether the statute contains
an arbitrary classification.    She asserts that a
classification is not arbitrary if it bears a reasonable
and substantial relationship to a legitimate legislative
objective.    Proffer No.  3, according to the Zoning
Administrator, is related to and furthers the necessary and
reasonable public purpose of providing recreational
facilities for the residents of Jefferson Green.    Thus, the
Zoning Administrator contends that Proffer No.  3 does not
violate Article IV,  §  14(18) of the Constitution of
Virginia.
Jefferson Green takes a contrary position.    Relying on
this Court’s decision in McClintock v. Richlands Brick
Corp.,  152 Va.  1,  145 S.E.  425  (1928), Jefferson Green
asserts that Proffer No.  3 is special legislation because
it benefits a private organization, Bren Mar.    Given what
Jefferson Green terms as  “the clear constitutional bar” of
Article IV,  §  14(18), it asserts that the Board did not
have the authority to accept Proffer No.  3 even with the
consent of the developer who made the proffer.    We do not
agree with Jefferson Green’s position because it fails to
take into account the reasonable and substantial
relationship between Proffer No.  3 and the object it sought
to accomplish.
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We begin our analysis of this issue by noting that,
pursuant to Code  §  15.2-2303(A)  (which, as we have already
stated, is the statute under which Fairfax County accepts
proffers), a zoning ordinance may include written proffers.
Thus, the proffers become part of the zoning ordinance.    As
such, they are legislative enactments entitled to the
presumption of constitutional validity.    See Wayside Rest.,
Inc. v. City of Virginia Beach,  215 Va.  231,  236,  208
S.E.2d  51,  55  (1974)  (“ordinance comes to us with the
presumption of constitutionality which attaches to all
legislative enactments”).    In accordance with that
presumption, we resolve any doubt in favor of an
enactment’s constitutionality.    Id.  (citing Town of Ashland
v. Supervisors,  202 Va.  409,  416,  117 S.E.2d  679,  684
(1961)); see also Ex Parte Settle,  114 Va.  715,  719,  77
S.E.  496,  497  (1913).
The constitutional provisions prohibiting special
legislation do not proscribe classifications.    King v.
Virginia Birth-Related Neurological Injury Compensation
Program,  242 Va.  404,  409,  410 S.E.2d  656,  659  (1991);
Mandell v. Haddon,  202 Va.  979,  989,  121 S.E.2d  516,  524
(1961); Martin’s Ex’rs v. Commonwealth,  126 Va.  603,  612,
102 S.E.  77,  80  (1920).    However, to pass constitutional
scrutiny, a classification  “must be natural and reasonable,
12




and appropriate to the occasion.”    Id.; accord King,  242
Va. at  409,  410 S.E.2d at  659; Holly Hill Farm Corp. v.
Rowe,  241 Va.  425,  430,  404 S.E.2d  48,  50  (1991); Mandell,
202 Va. at  989,  121 S.E.2d at  524.                               “[T]he test for
statutes challenged under the special-laws prohibitions in
the Virginia Constitution is that they must bear  ‘a
reasonable and substantial relation to the object sought to
be accomplished by the legislation.’  ”    Benderson Dev. Co.,
v. Sciortino,  236 Va.  136,  147,  372 S.E.2d  751,  757
(1988)  (quoting Mandell,  202 Va. at  991,  121 S.E.2d at
525); accord Pulliam v. Coastal Emergency Servs. of
Richmond, Inc.,  257 Va.  1,  18,  509 S.E.2d  307,  317  (1999).
“But the necessity for and the reasonableness of
classification are primarily questions for the legislature.
If any state of facts can be reasonably conceived, that
would sustain it, that state of facts at the time the law
was enacted must be assumed.”    Martin’s Ex’rs,  126 Va. at
612-13,  102 S.E. at  80; accord Pulliam,  257 Va. at  18-19,
509 S.E.2d at  317; Holly Hill Farm,  241 Va. at  431,  404
S.E.2d at  50; Mandell,  202 Va. at  989,  121 S.E.2d at  524;
Joyner v. Centre Motor Co.,  192 Va.  627,  635,  66 S.E.2d
469,  474  (1951).    The party assailing the enactment carries
the burden of establishing  “that it does not rest upon a
reasonable basis, and is essentially arbitrary.”    Holly
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Hill Farm,  241 Va. at  431,  404 S.E.2d at  50  (citing
Martin’s Ex’rs,  126 Va. at  614,  102 S.E. at  81).
Judged against this analytical framework, we cannot
say that Proffer No.  3 violates the constitutional
proscription against special legislation.    When the Board
accepted Proffer No.  3 in  1981, its objective was to
provide recreational facilities to the residents of
Jefferson Green.    In fact, the rezoning in  1976 required
on-site recreational facilities.    That objective was a
legitimate and reasonable legislative purpose.    See Code
§  15.2-2200  (formerly Code  §  15.1-427)  (recognizing need
for recreational facilities).    The Board accomplished its
objective by allowing the recreational facilities to be
provided at Bren Mar, a recreational complex located across
the street from Jefferson Green, rather than requiring on-
site facilities.    The record before us does not demonstrate
the existence of any other recreational facility in the
same proximity to Jefferson Green as Bren Mar was at that
time.    Given the  “state of facts at the time the law was
enacted,” Martin’s Ex’rs,  126 Va. at  612-13,  102 S.E. at
80, we believe that Proffer No.  3 was not arbitrary and
that it bore  “a reasonable and substantial relation to the
object sought to be accomplished.”    Mandell,  202 Va. at
991,  121 S.E.2d at  525.
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Jefferson Green, nevertheless, contends that this
Court’s decision in McClintock controls the disposition of
the present case.    There, the General Assembly, in a
special act, authorized  “the town council of the town of
Richlands  .  .  . to grant to any person, firm or chartered
company engaged in mining, manufacturing or merchandising,
a right of way for the construction, operation and
maintenance of a tramway or railway across, upon or along
any of the avenues or streets of said town, for a period
not to exceed thirty years  .  .  .                              .”   152 Va. at  5,  145 S.E.
at  426.    Pursuant to that act, the town council adopted an
ordinance granting a brick company the right to construct a
tramway upon a certain street in Richlands for the purpose
of hauling clay and shale in tram cars to its kilns for the
manufacture of brick.    Id.    The owner of a lot abutting
that street challenged the ordinance, in part, on the basis
that it violated the constitutional prohibition against
special legislation.    Id. at  10,  145 S.E. at  427.    This
Court agreed with the challenge.
The understood objective of the ordinance was economic
development of the town.    As we noted in our opinion, the
brick company was  “the only local enterprise of
consequence” and had been contemplating the need to move
from the town before it received the franchise to construct
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a tramway.    Id. at  8-9,  145 S.E. at  427.    However, there
was no reasonable and substantial relationship between the
legitimate legislative objective of economic development
and limiting the right to construct a tramway or railway
upon a town street to persons or companies  “engaged in
mining, manufacturing or merchandising.”    Id. at  5,  145
S.E. at  426.    Thus, the ordinance failed constitutional
scrutiny because it was not  “natural and reasonable, and
appropriate to the occasion.”    Martin’s Ex’rs,  126 Va. at
612,  102 S.E. at  80.
We believe that our decision in King is more directly
on point.    In that case, we upheld the constitutionality of
the Virginia Birth-Related Neurological Injury Compensation
Act, Code  §§  38.2-5000 through  -5021, against an attack
asserting that it violated the constitutional prohibition
against special legislation.                                        242 Va. at  410,  410 S.E.2d at
660.    The Act required a  “participating physician,” defined
as a physician practicing obstetrics or performing
obstetrical services, Code  §  38.2-5001, to pay an annual
assessment in an amount significantly larger than the
annual assessment required from  “non-participating
physicians.”    Id. at  408,  410 S.E.2d at  659.    Those  “non-
participating physicians” argued that the Act
“constitute[d] a special or private law because it
16




remove[d] certain claims against physicians who practice
obstetrical medicine from the traditional tort system and
require[d] that physicians who cannot participate in the
Program pay an annual assessment which is used to fund the
Program.”    Id.
Rejecting that argument, we stated that the General
Assembly conceivably concluded that, by removing the claims
of certain neurologically injured infants from the tort
system, the cost of medical malpractice insurance premiums
in the Commonwealth would decline, thereby making medical
malpractice insurance available to all physicians
practicing in Virginia. Id. at  410,  410 S.E.2d at  660.
Based on that state of facts, we held that the
classification created by the Act was  “not arbitrary and
[bore] a reasonable and substantial relation to a
legitimate object sought to be accomplished by the
legislation.”    Id.
Thus, we conclude that the circuit court erred in its
finding that Proffer No.  3 violates Article IV,  §  14(18) of
the Constitution of Virginia.    It focused only on the fact
that Bren Mar is a private organization receiving an
economic benefit as a result of Proffer No.  3.    The court
did not squarely address the reasonable and substantial
relationship between the Board’s objective and Proffer No.
17




3.    Nor did the court consider the state of facts in
existence when the Board accepted Proffer No.  3.
Citing Abood v. Detroit Bd. of Educ.,  431 U.S.  209
(1977); Shelton v. Tucker,  364 U.S.  479  (1960); and NAACP
v. Committee,  204 Va.  693  (1963), the circuit court also
concluded that Proffer No.  3 infringes upon  “freedom of
association” and that there was no compelling governmental
interest to justify Jefferson Green’s  “forced” membership
in Bren Mar.    In its letter opinion, the court did not
indicate, however, whether it believed that Proffer No.  3
violates the First Amendment of the Constitution of the
United States and/or Article I,  §  12 of the Constitution of
Virginia.    Regardless of the basis of the court’s decision,
we conclude that it erred.
In City of Dallas v. Stanglin,  490 U.S.  19,  24  (1989),
the Supreme Court of the United States once again stated
that the First Amendment protects two different kinds of
“freedom of association.”    See also Roberts v. United
States Jaycees,  468 U.S.  609,  617-18  (1984).    The first
type involves  “  ‘choices to enter into and maintain certain
intimate human relationships  [that] must be secured against
undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that
is central to our constitutional scheme.’  ”    Stanglin,  490
18




U.S. at  24  (quoting Roberts,  468 U.S. at  617-18).    The
second type of  “freedom of association” involves the
“  ‘right to associate for the purpose of engaging in those
activities protected by the First Amendment-speech,
assembly, petition for the redress of grievances, and the
exercise of religion.’  ”    Id.  (quoting Roberts,  468 U.S. at
618).    The Court further stated,  “[W]e do not think the
Constitution recognizes a generalized right of  ‘social
association  .  .  .                                               .’  ”              490 U.S. at  25.
To the extent, if any, that Proffer No.  3 infringes
upon  “freedom of association,” the affected association is
not one involving intimate human relationships or
activities specifically protected by the First Amendment.
Instead, it is only a generalized  “social association,”
which is not a right recognized by the Constitution.    Id.
The cases relied upon by the circuit court in support of
its decision on this issue are inapposite because they
involved the second type of  “freedom of association”
discussed in Stanglin.                                             490 U.S. at  24.
III. CONCLUSION
In summary, we will affirm the part of the circuit
court’s judgment in which it concluded that Proffer No.  3
does not violate Code  §  15.2-2297(A)(v).    We will reverse
the portion of the court’s judgment finding Proffer No.  3
19




to be unconstitutional.    Accordingly, since Proffer No.  3
is valid and enforceable, we will also affirm the circuit
court’s judgment finding Jefferson Green in violation of
Proffer No.  3, directing Jefferson Green to re-establish
membership in Bren Mar and to pay all monies owed to Bren
Mar, and enjoining Jefferson Green from any future
violation of Proffer No.  3.
Affirmed in part,
reversed in part,
and final judgment.
20

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