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.

To me, this involvement is healthy. Citizen involvement is a hallmark of local government, the part that makes it LOCAL. Local folks have access to government in their county, city or town. Unlike other levels of government, they actually get notice of meetings and can easily attend a public hearing or other public meeting on matters that impact them. Local citizens can access their local officials by phone, email, or by running into them in the grocery store. To me, this is the purest form of government of the people, by the people and for the people.

And, as I stated above, there is power in the people.

More and more, groups of citizens organize to oppose development to which they are opposed. They realize they CAN have an impact on the final vote. This has been described as the “Walmart effect” after the sometimes successful grassroots campaigns to defeat local land use approvals for the big box behemouth. Here is an article by the Saint Consulting Group on this “effect” which asserts that the “public can fight city hall.”

But the developers are catching on, too. Some have adopted the methods of the NIMBY crowd to actually SUPPORT development. Here is an article from Forbes magazine (Feb. 16, 2009) on the ability of some developers to tap into the power of the people.

As local government attorneys, we often sit on are on the sidelines watching the politics unfold. I expect to see more of these types of grassroots tactics, both for and against development in the future.