The “ABCs” of Vested Rights in Zoning

By: Andrew McRoberts, Editor. This was posted Monday, November 18th, 2013

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Recently, I spoke to a group of local government officials and staff and other interested persons on the history of vested rights in Virginia, the recent vested rights cases decided in 2012 and 2013, and the state of the law in 2013.

This is a very complex area, both in the case law of Supreme Court opinions and in the statutes adopted by the Virginia General Assembly.  Courts, elected officials, landowners, land use and local government attorneys and zoning officials struggle to apply the law of vested rights.  But in preparing for the presentation, I realized that three basic rules kept reoccurring in the vested rights cases, from the first vested rights cases in 1972, through the most recent cases, Town of Leesburg v. Long Lane Associates, 284 Va. 127 (2012) and Norfolk 102, LLC v. City of Norfolk, 285 Va. 340 (2013).

Here they are.  The ABCs, if you will, of vested rights.

Rule One:  Apply the law.

Simply, really.  This should be obvious.  But given the fact that every vested rights case involves a claim by a landowner that the otherwise applicable (amended) zoning ordinance does not apply to them, this rule keeps getting repeated.  The Supreme Court’s recitation of this rule takes various forms, including several in this quote from the Long Lane case:

“[W]hen a landowner has only a future expectation that he will be allowed to develop his property in accord with its current classification under the local zoning ordinance, there is ‘no vested property right in the continuation of the land’s existing zoning status.’” Id. (quoting Board of Zoning Appeals v. Caselin Sys., 256 Va. 206, 210, 501 S.E.2d 397, 400 (1998)); see also City of Suffolk [ex rel Herbert], 266 Va. at 143, 580 S.E.2d at 798 (“Generally, landowners have no property right in anticipated uses of their land since they have no vested property right in the continuation of the land’s existing zoning status.”) (emphasis added). Cf. Code § 15.2-2307. “‘[T]he mere reliance on a particular zoning classification . . . creates no vested right in the property owner.’” Hale, 277 Va. at 272, 673 S.E.2d at 181 (quoting City of Suffolk, 266 Va. at 145, 580 S.E.2d at 799).”  Town of Leesburg v. Long Lane Associates, 284 Va. at 135.

In other words, in general, the law — even if amended — applies.

Rule Two:  But… in limited circumstances, a landowner may obtain certain vested rights in a land use to complete a specific project, despite subsequent changes to the zoning ordinance that would prohibit it.

All of the vested rights cases have applied this rule, and most have rejected the landowner’s claim of vested rights.  It is my opinion that this deference to the legislative will (see Rule One) may be rooted in the doctrine of separation of powers, though you will find no mention of this in any case.

As vested rights cases, Rule Two was applied in both.  As the Court stated in the Norfolk 102 case, “”[I]n limited circumstances, private landowners may acquire a vested right in planned uses of their land that may not be prohibited or reduced by subsequent zoning legislation.” Board of Zoning Appeals v. CaseLin Sys., Inc., 256 Va. 206, 210, 501 S.E.2d 397, 400 (1998).”  Norfolk 102, LLC v. City of Norfolk, 285 Va. at 353.

Determining these “limited circumstances” involves an application of the vested rights statute, Virginia Code section 15.2-2307, and the case law of vested rights to each set of facts. Each case turns on the particular facts involved, and the exact parameters of those “limited circumstances.”

Rule Three:  Cannot change the law if you’re an administrator.

This also seems simple and obvious, but isn’t.  Given the unusual wording of Virginia Code section 15.2-2311(C)(in limited circumstances, a zoning administrator may be estopped to change his or her official determinations), and its inclusion by reference in one of the significant affirmative governmental acts listed in Virginia Code section 15.2-2307, this has come up often in vested rights cases and is often misunderstood.

From earlier cases, it is clear that a decision by a Zoning Administrator in conflict with the zoning ordinance is void, and a landowner obtains no rights from issuance of a determination or permit in conflict with the law.  This has been cited as recently as Goyonaga v. Board of Zoning Appeals of Falls Church, 275 Va. 232, 244  (2008) (zoning administrator cannot allow a nonconforming use to be demolished and rebuilt).  This is a variety of the (also obvious) point that an administrator cannot authorize an illegal act.  But as held in Goyonaga, 275 Va. at 244, under the exceptional circumstances described in Code section 15.2-2311(C), an “otherwise impermissible use” MAY be permitted.

Applying the statute in Norfolk 102, a “cash receipt” signed by the zoning administrator accompanying a business license issued to two bars at Waterside failed to rise to the level of a specific, formal determination that the bars could operate in a manner otherwise impermissible under the zoning ordinance.  Citing the Board of Supervisors of Stafford County v. Crucible, Inc., 278 Va. 152 (2009)(“zoning verification” not a “determination”), the Court held that the “cash receipt” was not the sort of “order, requirement, decision or determination” envisioned under Code section 15.2-2311(C) that should estop a zoning administrator or vest rights.

It was interesting how often these three “ABCs” of vested rights reoccurred in the opinions:

1. Apply the law.

2. But… in limited circumstances, a landowner may obtain certain vested rights in a land use to complete a specific project, despite subsequent changes to the zoning ordinance that would prohibit it.

3. Cannot change the law if you’re an administrator.

Although I do not claim to have any way to make vested rights very simple, this framework of ABCs runs through all of the vested rights cases, and may aid local government officials in their application of the principles of vested rights.

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