Latest on Vested Rights

By: Andrew McRoberts, Editor. This was posted Tuesday, September 1st, 2009

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The latest vested rights decision in the Commonwealth has been passed down from Judge C. Randall Lowe of the Twenty-eighth Judicial Circuit, sitting in the Washington County Circuit Court. The case is Commonwealth-Abingdon Partners, L.P. v. Town of Abingdon, Case No. CL08-47. You can read the opinion here.

In this case, a developer and contract owner intending to develop a Wal-Mart in the Town of Abingdon argued it had vested rights and did not have to comply with a recently-enacted historic overlay zoning district adopted by the Town. A subdivision plat had been “accepted” by the planning commission, then later recommended for denial. A site plan (the next item on the agenda) was never acted upon by the planning commission, since it relied upon approval of the subdivision of the property into six parcels.

The plaintiff argued a technical approval when the planning commission failed to take action on the site plan within sixty days. The Town argued that no approvals had been given.

The case turns on the wording of Virginia Code § 15.2-2307, of course, but specifically whether there was a “significant affirmative governmental act” which “remains in effect”, and whether the landowner showed “reasonable reliance” thereon. The court decided each of these issues in favor of the Town of Abingdon. The Court said that there was no significant affirmative government approval under Virginia Code § 15.2-2307, and even if it were, the landowners could not demonstrate “reasonable reliance” since the specific project shown on the site plan could not have been developed without the subdivision.

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