Thomas D. Horne, Chief Judge
Stephen M. Sayers, Esquire
1751 Pinnacle Drive, Suite 1700
McLean, Virginia 22102 Randall T. Greehan, Esquire
Jeffrey A. Huber, Esquire
T. David Stoner, Esquire
Robin W. Baxter, Esquire
6862 Elm Street, Suite 400
McLean, Virginia 22101 John R. Roberts, Esquire
Loudoun County Attorney
One Harrison Street, S.E., Fifth Floor
Leesburg, Virginia 20177-7000 Dear Counsel:
This case is before the Court on the Complainant's Motion for Leave to Amend their Verified Bill of Complaint for Declaratory, Injunctive, and Other Relief. The Court is required to give a degree of deference to the request by reason of the liberal leave accorded such motions under the Rules of the Supreme Court of Virginia. A brief review of the procedural history of this case is helpful to an understanding of the Court's opinion.
"No amendments shall be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice. In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper." Va. Sup. Ct. Rule 1:8
Complainant commenced this action on August 22, 2001. In a two count, seventeen page complaint consisting of sixty-six numbered paragraphs; it asserted that the provisions of Chapter Eight of the Revised General Plan for Loudoun County were void and illegal. Respondents countered with a Demurrer and Plea in Bar. The issues raised by the pleadings were fully briefed and argued by counsel. Complainant upon direction by the Court filed a Bill of Particulars. On May 10, 2002, the Court rendered the first of two letter opinions addressing the issues raised by the Plea in Bar and Demurrer.
While the Court determined earlier that it possessed the jurisdiction to adjudicate the request for declaratory relief, it sustained Respondents' Plea in Bar upon a finding that the Complainant was precluded from judicial review of the Plan while it had a subdivision application pending with Loudoun County (the County). Upon notice of the withdrawal of this application, the Court reconsidered its decision as to the special plea and permitted the matter to go forward to trial.
A scheduling conference was held on June 24, 2002. The scheduling order that resulted from that hearing was entered on November 8, 2002. This order reflects that the trial of this case was set to commence on December 17, 2002. Discovery was to be completed by November 27, 2002, excepting certain depositions. Furthermore, Complainant was to have designated expert witnesses on or before October 8, 2002. Complainant identified no experts prior to the date set by the scheduling order, and therefore, was precluded from offering at trial any expert testimony in its case in chief.
At a hearing on October 29, 2002, Complainant represented that the case only presented a facial challenge to Chapter Eight of the plan. It contended that it was confining its request for judicial review to a "Dillon Rule" challenge to the offending portions of the Revised General Plan. Thus, counsel for Complainant represented that it sought not to challenge the reasonableness of certain provisions of the Plan, but only whether they were void ab initio. Kole v. City of Chesapeake, 247 Va. 51 (1994).
The Dillon Rule would limit the power of the Board to act only when granted the power to do so by the legislature, when the power is necessarily implied from the express grant, and when the power is essential and indispensable. Where the grant does not set forth the method of implementing the express grant, the exercise of the power by the Board will be upheld so long as the method selected is reasonable. Arlington County v. White, 259 Va. 708 (2000).
Counsel for the Board of Supervisors of Loudoun County (the Board) then requested a stay in the proceedings in order that they might advise the Board as to their recommendation that the offending "phasing" and "supermajority" language at issue might be excised from the Plan. Finding that such action by the Board might obviate the need to proceed further in this case, the Court acceded to the request, removed the case from the trial docket, and stayed further proceedings until the Board might act. However, leave was granted to the parties so that they could motion the Court at any time, including the need to motion the Court in order to further amend their pleadings in light of any action or inaction on the part of the Board.
Complainant now seeks to take the Court up on its invitation and further amend its pleadings. Complainant has attached a copy of the proposed amendment with its motion. The Board vigorously challenges the amendment sought. The Board has countered with a Motion to Dismiss. In its Motion to Dismiss, the Board asserts that the offending portions of the Plan have been excised by the Board, rendering the facial challenge moot.
The Court refrained from ruling upon the motion to dismiss until it had decided the issue of further amendments to the pleadings. In determining whether the instant action has been rendered moot by the Board's action in eviscerating the offending provisions, the Court is called upon to determine whether there is a reasonable expectation that the offending conduct will recur and that the action of the Board completely eradicated the effects of the prior provisions of the Plan. County of Los Angeles v. Davis, 440 U.S. 625 (1979); Commonwealth ex. Rel. State Water Control Board v. Appalachian Power Company, 12 Va. App. 73 (1991). "As long as the parties have a concrete interest in the outcome of the litigation, the case is not moot notwithstanding the size of the dispute." Id. at 75. --------
In its proposed First Amended Verified Bill of Complaint for Declaratory, Injunctive, and Other Relief, Complainant sets out a nine-count claim consisting of 129 numbered paragraphs. It is an attack on what it asserts are illegal and ultra vires utility and land use policies and practices of the Board of Supervisors over a number of years. Among other things, Complainant seeks money damages from the County and the Board.
The land use practices challenged by the Complainant are contained in: (1) the October 15, 1997, amendments to the Dulles South Area Management Plan, (2) the July 23, 2001, amendments to the Loudoun County General Plan, and (3) certain additional amendments to the 2001 Revised General Plan adopted on January 1, 2003.
The Amended Verified Bill introduces claims predicated upon the unreasonableness of government action as well as the limits within which the government has the power to act. It purports to be based upon not only the validity of prior legislative acts, but also the reasonableness of such actions as applied to all property owners in the affected area, including the Complainant.
While Complainant had previously relied solely upon its challenge to the provisions as void ab initio, it has now attempted to reintroduce an "as applied" aspect to the case after discovery was complete. While these allegations may be grist that would spawn other lawsuits, they have no place in this one. The Amended Complaint is a veritable smorgasbord of claims setting forth every conceivable theory attacking land use regulation of the Board as it applies to the extension of public utilities to the affected property. This is a millennium away from the simply stated challenge that was represented to the Court that the Board lacked the power to enact the "phasing" and "supermajority" options contained in the Chapter Eight of the Revised General Plan.
Complainant's asserts that,
[t]he Board's adoption of Chapter Eight of the 2001 RGP Amendments, and the 1997 DSAMP Amendments was illegal, exceeded the bounds of the Board's statutory authority, was without justification or rational bases, exclusionary, discriminatory, vague, arbitrary, capricious, and, as applied to the Property, unreasonable, all in violation of the Code of Virginia, the United States and Virginia Constitutions, and Virginia common law.
Such allegations belie the nature of the case as represented to the Court and counsel several months ago when proceedings were stayed.
The offending language has been excised from the language of the Revised General Plan.
Thus, the language that would have conditioned extension of facilities based upon either a "phasing" or "supermajority" language has been deleted in favor of a prohibition against extension into the Upper Broad Run "subarea" where the property is located. To the extent that the amendments by the Board raise additional grounds to facially challenge the provisions of the ordinance, they are properly the subjects of further pleading in this case. However, such amendment would be without prejudice to the respondents to argue their motion to dismiss the case as moot.
Central to a determination of whether leave to amend should be granted is the issue of prejudice. Will the Board be prejudiced in such a way as to affect its right to a fair trial, if the Court were to afford the complainant leave to file the amended pleading that has been tendered? Peterson v. Castano, 260 Va. 299 (2000). The answer to this question is found in the procedural history of this case. Rather than limiting the right of the Complainant to pursue its facial challenge, the decision to stay respected the property owners right to further consider the impact of any amendments the Board might make upon its interest in pursuing this litigation.
Were the Court to permit the proposed amended bill to be filed as drafted, it would afford the Complainant an opportunity to pursue claims that were available to it when this case was commenced, abandoned after discovery was completed, and resurrected only on the eve of trial. To the extent the Complainant wishes to continue with a facial challenge to the Plan it will be accorded every opportunity to further amend its pleadings for that limited purpose.
Accordingly, Complainant will be granted leave to further amend its pleading by way of allegations respecting actions of the Board it considers void ab initio and in contravention of the Dillon Rule. It may not, as is attempts to do in the pleading presently before the Court, reintroduce into this case matters previously abandoned. This would include any "as applied claims", including those relating to the unreasonableness and arbitrariness of such actions as they may affect this complainant.
Complainant will have twenty-one days within which to further amend its pleadings consistent with this opinion. Mr. Greehan may draw a decree consistent with this opinion to which counsel may note their exception. The matter of the motion to dismiss the instant case as moot is continued until such time as the Complainant is afforded the opportunity to further respond.
Very truly yours,
Thomas D. Horne, Chief Judge