EMAC, L.L.C. v. County of Hanover, 291 Va. 13

Background

EMAC owned a parcel in Hanover County planned as the southern site for one of two destination commerce signs approved by CUP-2-12 to advertise the proposed “Outlets at Richmond.”
CUP-2-12 (approved 2012) authorized two signs (northern on Northlake property; southern on EMAC property) subject to conditions: conformity to renderings, master sketch plan, issuance of outlet mall permits, and that the CUP would expire after one year without substantial construction/use.
Northlake (and related entities) cooperated with outlet-mall developer Craig Realty; Northlake obtained an extension for its northern sign in 2013/2014; EMAC sought a 2014 extension for its southern sign but the Board denied it.
EMAC sued the County and Board alleging arbitrary, capricious, and impermissibly discriminatory denial of the extension and sought damages; defendants demurred and moved to dismiss; the circuit court sustained the demurrer and dismissed with prejudice.
The Supreme Court considered (a) whether a discrimination claim requires alleging the existing zoning ordinance is unreasonable as applied, and (b) whether EMAC alleged facts showing it was similarly situated to Northlake and that the Board’s denial lacked a rational basis.
The Court affirmed dismissal: held EMAC need not allege unreasonableness of the ordinance to plead discrimination, but found EMAC and Northlake not similarly situated (CUP void as to EMAC for lack of owner/agent consent) and that the Board’s decision was fairly debatable/rational.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a zoning discrimination claim requires alleging the zoning ordinance is unreasonable as applied	EMAC: No — a discrimination claim alleging unequal treatment is itself an allegation of unreasonableness and need not separately plead the ordinance is unreasonable as applied	County: Plaintiff must show ordinance unreasonable as applied to prevail on CUP challenge	Held: Court agreed with EMAC — discrimination claim does not require separate allegation that ordinance is unreasonable as applied
Whether EMAC and Northlake were "similarly situated" for discrimination purpose	EMAC: Both properties were approved in CUP-2-12 and are in the same Destination Commerce area; thus similarly situated	County: Northlake was applicant/owner on record and gave inspection consent; EMAC was not an applicant and gave no permission, so CUP was void as to EMAC	Held: Not similarly situated — CUP valid as to Northlake but void ab initio as to EMAC because EMAC did not appear as applicant/agent or grant required permissions
Whether the Board’s denial of EMAC’s extension was arbitrary, capricious, or lacked rational basis	EMAC: Denial was discriminatory and motivated by improper factors (to benefit Craig Realty and exclude competition)	County: Decision was supported by conditions, public‑interest considerations, and the need for outlet‑developer control to satisfy CUP prerequisites; therefore fairly debatable	Held: Board’s denial was supported by a rational basis and was fairly debatable; dismissal affirmed
Whether exhibits considered under motion craving oyer could be used to resolve a demurrer	EMAC: Some facts disputed; should be resolved after evidence	County: Documents are part of the pleadings and may be considered on demurrer	Held: Court may consider unambiguous exhibits added by oyer; circuit court properly relied on them in sustaining demurrer

Key Cases Cited

City Council of Virginia Beach v. Harrell, 236 Va. 99, 372 S.E.2d 139 (establishes presumption of validity for CUP decisions and requirement of clear proof to overturn)
Board of Supervisors v. McDonald's Corp., 261 Va. 583, 544 S.E.2d 334 (party must show a similarly situated landowner was treated differently; locality must show rational basis)
City of Richmond v. Randall, 215 Va. 506, 211 S.E.2d 56 (zoning review standards apply to CUPs)
Board of Supervisors v. International Funeral Servs., 221 Va. 840, 275 S.E.2d 586 (discusses standards for zoning/CUP challenges)
Concerned Taxpayers v. County of Brunswick, 249 Va. 320, 455 S.E.2d 712 (third‑party challenge where CUP issued to nonowner/without required authority)
Hurt v. Caldwell, 222 Va. 91, 279 S.E.2d 138 (permits issued in violation of ordinance are void)
Squire v. Virginia Hous. Dev. Auth., 287 Va. 507, 758 S.E.2d 55 (standard of review on demurrer — accept pleaded facts and reasonable inferences)
Schaecher v. Bouffault, 290 Va. 83, 772 S.E.2d 589 (court may ignore allegations contradicted by unambiguous documents in the pleadings)