Evening star. [volume] (Washington, D.C.) 1854-1972, 1959-03-16
State Court Voids
FreehiII Zone Law
Fairfax Plan
On Lot Sizes
Now Is Dead

Court Of Appeals today affirmed
a lower court ruling killing
Fairfax County'S Freehill zon-
ing amendment. which at
tempted to limit development
of the western two-thirds Of
the county to lots of two acres
or more.
The clerks Office of the high
court said that the lower court
ruling had been affirmed in
both appeals-one brought by
the Board of County Super
visors and the other by a
group of residents who sup
ported the two-acre restric-
ton.
THE evidence fully sustains
the finding of the trial judge
that the 'Freehill amendment
in so far as the 2-acre restric.
ton in the amendment is con-
cerned, is unreasonable and
arbitrary and that it bears no
relation to the health, safety.
morals or general welfare Of
the owners or residents OF the
area so zoned," said the APP
peals Court.
Having reached this con-
cluSion, it is unnecessary to
discuss the other assignments
of error"
Elimination of the two-acre
lot category normally would
return the county to a maxi
mum lot size requirement of a
half-acre, but the supervisors
have initiated stop-gap action
to prevent immediate rapid de-
velopment pending a re-evalua-
ton of the whole coming situa-
ton.
Outgrowth of Master Plan
The So-called Freehill coming
amendment named for its
sponsor, the late Supervisor Jo-
seph H. Freehill - was an out.
growth of the original master
plan survey made of Fairfax
County five years ago by Fran
els Dodd McHugh, planning
consultant.
/ Mr.. Ntzhugh, advised the
county to confine suburban.
type development to the east
ern third of the county nearest
Washington, so public services
could be provided more eco
nomically. He proposed that the
estern two thirds Of the
county be restricted for the
most part to development on g.
and 5-acre lot sizes.
The county planning COM
mission then in office. however.
refused to go along with the
proposal and this tied the
hands of the Supervisors as far
as adopting a master plan was
concerned.
To implement Mr.. McHugh's
proposal without formal adop-
ton of a master plan. Mr..
Freehill proposed the contro-
versial amendment limiting lot
sizes in the western two-thirds
of the county to a minimum Of
two acres.
Previous Restriction
Previously. the largest lot size
restriction in the county was q
half acre. At that time, no
other county in the Washington
area had a lot size limitation as
large as two acres, although
Montgomery County subse-
quently has set up such zone.
About 80 property owners at.
fected by the new two-acre re-
striction brought suit. chal-
longing the county'S authority
to require lots that large. G.
Wallace Carper, former chair
man of the Board of County
Supervisors. was among them.
Judge Lyttleton Waddell OF
Charlottesville. who was desig-
mated to hear the case in Fair
fax Circuit Court after local
judges disqualified themselves.
ruled on September 26. 1857.
that the Freehill amendment
was unconstitutional.
Key issue in the case was
whether the county had au-
thority to restrict lot sizes in
the interests of government
economy. The county, repre-
sented by Armistead Boothe,
contended that it had such au.
thority because the State con.
stitution states that coming
shall be for the general vel.
fare of a locality.
Judge DisagreeS
Judge Waddell disagreed with
the county'S position. He held
that the predominant interest
to be served by the Freehill
amendment was financial.
The size of the restricted area,
he said, lis such that it cannot
be anticipated that any ma
terial part of it can be used
for residential purposes. He
held that the coming amend
ment was in conflict with the
constitutional guarantee of
aqual protection of the laws
and also said it was arbitrary
and capriciouS.
Although Judge Waddell's
decision hinged in part on a
Federal constitutional question
that is whether the amend
ment violated the equal pro-
lection clauSe-Mr. Boothe said
he believed it would be futile
to appeal the decision to the
United States Supreme Court.
He pointed out that in addition
to the conStitutionality ques-
ton, Judge Waddell also had
said the coming amendment was
arbitrary and capricious. This
is the point the appellate court
stressed