Hoffman Family L.L.C. v. Mill Two Associates

Present: 	Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
HOFFMAN FAMILY, L.L.C.
OPINION BY
v. 	Record No. 981302 	JUSTICE LAWRENCE L. KOONTZ, JR.
April 21, 2000
MILL TWO ASSOCIATES PARTNERSHIP, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
In this appeal, we first consider whether a proposed land
development had advanced to a point sufficient to permit the
chancellor to issue a declaratory judgment construing a
restrictive covenant burdening a portion of the land to be
developed, and if so, whether the chancellor correctly
determined that the proposed development did not violate that
restrictive covenant.
BACKGROUND
The central focus of this appeal is a restrictive covenant
in a December 11, 1989 deed between Hubert N. Hoffman and Peggy
L. Hoffman, husband and wife and predecessors in interest in
Hoffman Family, L.L.C.,1 and Mill Two Associates Partnership
1Although not evidenced in the record, it is undisputed that
the Hoffmans transferred their interest in this covenant to this
limited liability corporation prior to the initiation of the
suit for declaratory judgment from which this appeal arises.
Because the interests of the Hoffmans and the successor
corporation are identical, we will hereinafter refer to

(Mill Two) recorded in the land records of the City of
Alexandria on December 12, 1989. 	By that deed, Hoffman conveyed
to Mill Two a 3.88-acre tract of land, referenced in the
subsequent declaratory judgment suit from which this appeal
arises as “Parcel 11,” situated at the northwest corner of the
intersection of Eisenhower Avenue and Mill Road in the City of
Alexandria. 	The restrictive covenant provides that:
the property set forth above shall be developed for
residential purposes only, not to include motels and
hotels, but, which may include up to fifteen percent
(15%) of commercial space for residential support.
This covenant shall run with the land, but, nothing
above withstanding, shall lapse and be no further in
force and effect on January 1, 2020.
The conveyance of Parcel 11 to Mill Two by the December 11,
1989 deed was made in conjunction with an “Agreement for the
Like-Kind Exchange of Property” executed by Hoffman and Mill Two
on November 6, 1989. 	Pursuant to that agreement, Hoffman
subsequently received five separate parcels of land in the City
of Alexandria totaling 3.3 acres. 	Like Parcel 11, these parcels
were part of the “Eisenhower Avenue Metro valley,” an area of
the City of Alexandria undergoing intense redevelopment
following the opening of a Washington Metropolitan Area Transit
Authority Metrorail line. 	In addition to parcels already owned,
“Hoffman” whenever referencing the party seeking to enforce this
covenant.
2

these parcels facilitated Hoffman’s current and future plans to
develop property adjoining the Metrorail line in the City of
Alexandria.
Mill Two ultimately sought to develop Parcel 11 in
conjunction with Old Town Development Company, L.L.C. (Old Town
Development), the owner of two parcels on Mill Road adjoining
Parcel 11 along their south and west boundaries. 	These parcels,
referenced in the subsequent declaratory judgment suit from
which this appeal arises as Parcel 9 and Parcel 10, total
approximately 1.24 acres.2
The purpose of combining the land area of the three parcels
into a single development was to obtain the benefits of the
designation of property in the Eisenhower Avenue Metro valley
area as a “Coordinated Development District” under the City of
Alexandria’s zoning ordinances. 	See Alexandria Zoning Ordinance
§ 5-601, et seq. 	In testimony during a hearing on the merits of
the suit, Kimberly Johnson, chief of the development division of
2Also named as respondents in this litigation were Old Town
Development’s predecessor in interest, another development firm,
and a construction firm involved at various points in the joint
venture to develop Parcels 9, 10, and 11. 	These parties were
subsequently dismissed from the suit and are not parties to this
appeal. 	Subsequent to the filing of the original declaratory
judgment suit, Old Town Development acquired a contract purchase
interest in Parcel 11 from Mill Two. 	Accordingly, Old Town
Development is the principal party in interest that seeks to
develop these three parcels.
3

the City of Alexandria Department of Planning and Zoning,
explained that Coordinated Development Districts are employed by
the City to “encourage higher density development around Metro
stations.” 	Essentially, within a Coordinated Development
District, the floor area ratio for determining the maximum
square footage of permissible development, or “density,” for a
given parcel of land may be increased by combining its
development with that of adjoining parcels. 	According to
Johnson, the parcels of land included in a combined development
proposal need not necessarily coincide with the boundaries of
lots as reflected in the land or tax records.
By combining the development of Parcels 9 and 10 with that
of Parcel 11, the floor area ratio for the combined parcels
would be raised from 1.25 to 3.75. 	Alexandria Zoning Ordinance
§ 5-602. 	Moreover, the total density permitted in the
development would be based upon the application of the floor
area ratio to the combined area of the three parcels, rather
than to each parcel individually. 	In other words, the density
of development of one parcel would not be limited based upon its
area so long as the total density of development of the three
parcels combined did not exceed that allowed under the zoning
ordinance.
“Mill Race - Old Town Commons,” the development proposed
for Parcels 9, 10, and 11, consists of four high rise
4

residential towers, principally located on Parcel 11, and a
fifteen story office building located solely on Parcels 9 and
10. 	A ground level plaza with retail commercial space and
parking garages, both below and above ground, connect the five
main buildings of the development.
The record shows that efforts were made to coordinate the
development of Parcels 9, 10, and 11 with the development of
Hoffman’s parcels in the Eisenhower Avenue Metro valley.
However, because of competing interests, the parties were unable
to reach an accord on joint development.
On August 13, 1997, Hoffman filed a bill of complaint
seeking a declaratory judgment that the proposed development of
Parcels 9, 10, and 11 would violate the restrictive covenant in
the December 11, 1989 deed conveying Parcel 11 to Mill Two.
Because of changes in ownership of the parcels, see note 2
supra, and the continuing process of obtaining approval from the
City of Alexandria for the proposed development, Hoffman filed
an amended bill of complaint on October 22, 1997. 	The gravamen
of Hoffman’s suit, however, continued to be that the use of the
land area of Parcel 11 to increase the density of commercial
construction permitted on Parcels 9 and 10 was violative of the
restrictive covenant in that this constituted a use of Parcel 11
for other than residential and supporting commercial purposes.
5

On November 7, 1997, Mill Two filed a demurrer to the
amended bill of complaint, asserting that the case was not yet
ripe for decision. 	Mill Two asserted that the plan for
development of Parcels 9, 10, and 11 as alleged in the bill of
complaint was not sufficiently certain to warrant a declaratory
judgment.
On November 14, 1997, Old Town Development filed an answer
and cross-bill to the bill of complaint.3 Old Town Development
contended that Hoffman had no standing to challenge the proposed
development of Parcels 9 and 10. 	Old Town Development further
contended that Hoffman’s suit was an improper attempt to bring
“a cloud on the title” of Parcel 11 and sought damages on that
account.
Hoffman filed a motion for summary judgment on the cross-
bill, contending that a lawsuit could not constitute an improper
attempt to cloud a title. 	On December 23, 1997, the chancellor
heard argument on the motion for summary judgment, but declined
to rule on the matter and, rather, permitted Old Town
Development to file an amended cross-bill. 	Hoffman then moved
the court to dismiss the case, asserting that its bill of
3The cross-bill was initially styled as a “counterclaim.”
In this opinion, we will use “cross-bill,” the proper term for
this type of pleading in a chancery suit. 	See Rule 2:13
(“Cross-Bill Against Plaintiff”).
6

complaint was premature, and that, but for the filing of the
cross-bill, it would have taken a voluntary nonsuit. 	Old Town
Development and Mill Two took the position that the case was
ripe for decision in order to resolve the “cloud hanging over
us.” 	The chancellor ruled that there was a justiciable
controversy and denied Hoffman’s motion to dismiss.
On December 30, 1997, Old Town Development filed its
amended cross-bill. 	Included in the relief sought in that
pleading was a determination of whether the proposed development
of Parcels 9, 10, and 11 would violate the restrictive covenant
on Parcel 11.
During the pendency of the proceeding before the chancellor
and despite concerns over the failure to coordinate development
with Hoffman, on January 24, 1998, the Alexandria City Council
approved, subject to certain restrictions, the Coordinated
Development District Concept Plan submitted by Old Town
Development for Parcels 9, 10, and 11. 	The approval of the
concept plan does not permit the beginning of construction,
which requires the further approval of final site plans and the
grant of building permits. 	In addition to approving the concept
plan, the City also approved a necessary zoning change and
granted a special use permit for traffic management related to
the development of phase one of Old Town Commons.
7

Having previously filed a demurrer to the amended cross-
bill, on February 18, 1998, Hoffman filed a motion to dismiss
its amended bill of complaint or, in the alternative, to be
allowed to take a voluntary nonsuit. 	Hoffman also filed a
motion to dismiss the amended cross-bill. 	In each of these
pleadings Hoffman again asserted that there was not yet a
justiciable controversy between it and Old Town Development,
either because Old Town Development had not yet acquired an
interest in Parcel 11 or because the plan for development of
Parcels 9, 10, and 11 was not yet sufficiently certain to permit
a declaratory judgment on the effect of the restrictive
covenant. 	Old Town Development filed responsive pleadings, with
supporting materials, opposing Hoffman’s efforts to prevent the
chancellor from rendering a judgment on the merits.4
A three-day hearing on these issues commenced on February
27, 1998. 	The voluminous record of testimony and exhibits that
resulted from that hearing need not be summarized here except to
the extent that the facts have already been recounted above. 	It
shall be sufficient to state that Hoffman argued forcefully for
4As we have previously noted, this change in the essential
positions of the parties, whereby Hoffman sought dismissal and
Old Town Development sought an adjudication on the merits,
resulted from the changes in ownership of Parcel 11 and the
continuing process of obtaining approval from the City of
Alexandria during the pendency of the suit.
8

the dismissal of its amended bill of complaint and Old Town
Development’s amended cross-bill, while maintaining that if the
case were ripe for decision, the coordinated development of
Parcels 9, 10, and 11 violated the restrictive covenant on
Parcel 11 by permitting its land area to be used in augmenting
the permissible density of commercial development of the other
two parcels. 	Hoffman also asserted that the proposed commercial
retail space on Parcel 11 violated the restrictive covenant
because it was not intended for “residential support.” 	Old Town
Development presented evidence that it was close to receiving
approval to begin construction of the first phase of the
development, necessitating a judicial determination of the
effect of the restrictive covenant. 	Old Town Development
maintained that its proposed development of the three parcels
did not violate that covenant.
On March 31, 1998, the chancellor entered a final decree,
which dismissed Hoffman’s amended bill of complaint with
prejudice and granted judgment for Old Town Development on its
amended cross-bill. 	Specifically, the chancellor ruled “that
the development plans of Old Town [Development], as presented in
evidence in this proceeding and to the City of Alexandria, do
not violate the covenant . . . given by defendant Mill Two . . .
to Hoffman.” 	We awarded Hoffman this appeal.
9

DISCUSSION
Hoffman first contends that the trial court erred in
dismissing its amended bill of complaint with prejudice and in
addressing the merits of the amended cross-bill because no
justiciable controversy existed between Hoffman and Old Town
Development concerning the proposed use of Parcels 9, 10, and
11. 	We disagree.
The circumstances under which a circuit court may render a
declaratory judgment are provided for by statute and have been
frequently addressed in our prior decisions. 	Under the
Declaratory Judgment Act (the Act), Code §§ 8.01-184 through -
191, circuit courts have the authority to make “binding
adjudications of right” in cases of “actual controversy” when
there is “antagonistic assertion and denial of right.” 	Code
§ 8.01-184; Blue Cross & Blue Shield v. St. Mary’s Hospital, 245
Va. 24, 35, 426 S.E.2d 117, 123 (1993); Erie Insurance Group v.
Hughes, 240 Va. 165, 170, 393 S.E.2d 210, 212 (1990); Reisen v.
Aetna Life & Casualty Co., 225 Va. 327, 331, 302 S.E.2d 529, 531
(1983). 	The Act does not give trial courts the authority to
render advisory opinions, to decide moot questions, or to answer
inquiries that are merely speculative. 	Blue Cross, 245 Va. at
35, 426 S.E.2d at 123; Erie, 240 Va. at 170, 393 S.E.2d at 212;
Reisen, 225 Va. at 331, 302 S.E.2d at 531. 	The Act also is not
to be used as an instrument of procedural fencing, either to
10

secure delay or to choose a forum. 	Liberty Mutual Insurance Co.
v. Bishop, 211 Va. 414, 419, 177 S.E.2d 519, 522 (1970);
Williams v. Southern Bank, 203 Va. 657, 662, 125 S.E.2d 803, 807
(1962).
The authority to enter a declaratory judgment is
discretionary and must be exercised with great care and caution.
Liberty Mutual, 211 Va. at 421, 177 S.E.2d at 524. 	Furthermore,
when the resolution of a disputed fact would be determinative of
a case, rather than a construction of definite stated rights,
status, or other relations, commonly expressed in written
instruments, the case is not appropriate for declaratory
judgment. 	Id. at 420, 177 S.E.2d at 523; Williams, 203 Va. at
663, 125 S.E.2d at 807. 	Ultimately, however, the Act is
remedial, having the express purpose “to afford relief from the
uncertainty and insecurity attendant upon controversies over
legal rights, without requiring one of the parties interested so
to invade the rights asserted by the other as to entitle him to
maintain an ordinary action therefor.” 	Code § 8.01-191. 	The
Act is to be “liberally interpreted and administered with a view
to making the courts more serviceable to the people.” 	Id.
Hoffman contends that the limitation of the restrictive
covenant in the December 11, 1989 deed was not ripe for
determination in a declaratory judgment action because Old Town
Development had no vested right to develop Parcels 9, 10, and 11
11

at the time the original action commenced. 	Even conceding that
the approval of the Coordinated Development District Concept
Plan for those parcels occurred prior to the chancellor’s
rendering judgment, Hoffman contends that it was still purely
speculative whether Old Town Development would receive the
necessary final zoning and building permit approvals before the
right to begin construction would be assured.
With respect to land use issues, it is true that we have at
times defined the nature of a declaratory judgment suit in terms
of whether the party seeking the judgment has acquired some
vested right by virtue of zoning approval and, thus, is entitled
to the relief sought. 	See, e.g., Town of Stephens City v.
Russell, 241 Va. 160, 164, 399 S.E.2d 814, 816 (1991). 	However,
we have never held that a party must establish a vested right,
in the form of governmental approval to proceed with
development, before obtaining a declaratory judgment on the
issue whether some private right would bar that development.
While we can envision cases where the proposed development
of property would be so speculative and indefinite as to not
rise to the level of a justiciable controversy, such is not the
case here. 	The record shows that Mill Two and Old Town
Development have taken substantial steps, with significant
financial expense, in developing specific plans for the
development of residential and commercial buildings on Parcels
12

9, 10, and 11. 	From the detail and scale of those plans, it is
certain that governmental approval of the density of the
commercial portion of that development will require the
increased floor area ratio provided by treating the three
parcels as part of a coordinated development. 	Thus, while those
plans may undergo revision prior to Old Town Development
receiving final approval to begin construction, nothing in the
record suggests that those plans would be altered so radically
as to render speculative the central issue raised in this
declaratory judgment suit. 	Moreover, without a judicial
resolution of the effect of the restrictive covenant in question
the parties would be left without relief from the uncertainty
and insecurity attendant upon the continuing controversy of
their legal rights with regard to this covenant. 	Accordingly,
we hold that, on the specific facts of this case, a justiciable
controversy existed at the time Hoffman filed the initial bill
of complaint, and that the chancellor properly exercised his
jurisdiction thereafter in rendering judgment to resolve that
controversy.
We now consider Hoffman’s contention that the chancellor
erred in finding that the development proposed for Parcels 9,
10, and 11 did not violate the restrictive covenant in the
December 11, 1989 deed. 	The essence of Hoffman’s contention in
this regard is that the covenant restricts not merely the uses
13

that may be made upon Parcel 11, but also the uses that may be
made of Parcel 11. 	Hoffman first asserts that the language of
the deed is unambiguous and, thus, the chancellor should have
applied its plain meaning “in light of the circumstances at the
time of its creation.” 	Hoffman then asserts that under those
circumstances in this case, the terms “property” and “developed”
in the phrase “the property set forth above shall be developed
for residential purposes only” in the restrictive covenant are
terms of art which should be given the meaning intended by the
parties as evidenced by their dealings. 	That meaning, Hoffman
further asserts, is that “property” refers to the boundaries of
a parcel of land and to all “[t]he bundle of rights attaching to
[land] . . . which includes the right of development,” and
“developed” refers to “planned unit developments” of the type
contemplated in a Coordinated Development District or under a
similar zoning scheme. 	Thus, Hoffman concludes that the
covenant restricts the use of the development rights attached to
Parcel 11 in the proposed development of Parcels 9, 10, and 11
as one tract of land. 	We disagree with Hoffman.
It is the well settled rule of this Commonwealth that if
the language in a deed is clear, unambiguous, and explicit, a
court called upon to construe such language should look no
further than the four corners of the deed itself. 	Irby v.
Roberts, 256 Va. 324, 329, 504 S.E.2d 841, 843 (1998). 	Thus,
14

contrary to Hoffman’s contention, parol evidence of “the
circumstances at the time of [the deed’s] creation” is not to be
considered in giving effect to the clear, unambiguous, and
explicit language of the deed. 	Daugherty v. Diment, 238 Va.
520, 525, 385 S.E.2d 572, 574 (1989).
The plain meaning of the language emphasized by Hoffman
does not support the broad construction of the terms “property”
and “developed” that Hoffman asserts. 	Here the term “property”
is modified by the phrase “set forth above.” 	This is clearly a
reference to the physical description of the property earlier in
the deed. 	Similarly, the term “developed” must be read in the
context of the language that both precedes and follows it. 	When
so read, the clear, unambiguous, and explicit language of the
covenant restricts the development that may occur on Parcel 11
to residential uses, excluding hotels and motels, but permitting
a limited amount of supporting commercial uses. 	Nothing in this
language imposes a limitation on Parcel 11 being developed in
conjunction with other parcels in the Coordinated Development
District. 	While we agree that Hoffman could have drafted the
covenant to apply to “development rights” related to “planned
unit developments,” it simply failed to do so with the language
of this covenant.
Finally, Hoffman contends that the chancellor erred in
failing to find that the retail commercial space included in the
15

proposed residential development of Parcel 11 violates the
restrictive covenant. 	Hoffman does not contend that the amount
of retail commercial space exceeds the fifteen percent
limitation of the restrictive covenant. 	Rather, it contends
that under the development proposal the retail commercial space
“is intended to serve the entire local region.” 	Thus, Hoffman
contends that the scope of the proposed retail commercial
development exceeds that contemplated by the phrase “for
residential support” in the restrictive covenant.
The phrase “commercial space for residential support”
clearly imports that the retail commercial space should benefit
the residential development of Parcel 11. 	Nothing in that
language suggests, however, that the customer-base of the retail
commercial space must be restricted to the residents of that
development. 	It is, therefore, not inconsistent with the
language of the covenant that the retail commercial space
permitted as part of the development of Parcel 11 may also serve
the occupants of the adjoining parcels or those of the
surrounding environs so long as its purpose does not exclude
providing retail commercial support to the residential
development of Parcel 11.
The chancellor found that there was a lack of “persuasive
evidence that the [retail commercial space] is particularly
oriented to support the commercial buildings as opposed to the
16

residential buildings.” 	When the chancellor hears evidence ore
tenus, his decree is entitled to the same weight as a jury
verdict, and we are bound by the chancellor’s findings of fact
unless they are plainly wrong or without evidence to support
them. 	Rash v. Hilb, Rogal & Hamilton Co., 251 Va. 281, 283, 467
S.E.2d 791, 793 (1996). 	Additionally, we review the evidence
and all reasonable inferences fairly deducible therefrom in the
light most favorable to the prevailing parties below. 	Id.
Applying that standard, we cannot say that the chancellor’s
determination that the proposed retail commercial space did not
violate the restrictive covenant was in error.
CONCLUSION
For these reasons, we find no error in the chancellor’s
declaratory judgment that the proposed development of Parcel 11
in conjunction with Parcels 9 and 10 will not violate the
restrictive covenant in the December 11, 1989 deed.
Accordingly, that judgment will be affirmed.
Affirmed.
17