We’ve been busy! (This will explain, in part, the length of time since my last post, for which I apologize.)

Planned for several months, the webinar was well-received and timely, given two major vested rights decisions by the Virginia Supreme Court in 2009, Hale v. Board of Zoning Appeals of Blacksburg, 277 Va. 250, 673 S.E.2d 170 (2009) and Board of Supervisors of Stafford County v. Crucible, 278 Va. 152, 677 S.E.2d 283 (2009), and the amendment of the vested rights statute, Virginia Code § 15.2-2307, by the 2010 General Assembly via HB 1250.

The webinar included an overview of vested rights law that lead up to the codification of a Virginia statutory vested rights standard in 1998, the vested rights cases since codification, most notably City of Suffolk, ex rel Herbert v. Board of Zoning Appeals, 266 Va. 137, 580 S.E.2d 796 (2003), and, of course, Hale and Crucible.

The webinar also included excellent analysis by Karen Harwood, former Deputy Fairfax County Attorney and long-time legislative liaison for Fairfax County. Karen gave her perspective as one involved in both the General Assembly process that lead to the original codification of vested rights in Virginia in 1998, and this year’s process that led to this year’s HB 1250. Her extensive experience in both land use law and in the legislature, and her straight-forward commentary and advice made the webinar a learning experience for everyone.

Joining me on the panel from Sands Anderson were Ann Neal Cosby and Annemarie Cleary, fellow members of the Sands Anderson local government team and primary authors of the local government amicus curiae brief in the Crucible case. Since I authored the local government amicus curiae brief in the Hale case, Sands Anderson has been very active in the advancement of vested rights law in Virginia!

There were two primary goals in offering the webinar for free to local government attorneys, zoning officials and staff: (i) to give local governments free training at a time when their budgets are stretched, and (ii) to give timely commentary and assistance to local governments trying to address HB 1250.

As discussed in an earlier post on this blog, HB 1250 added a new defined “significant affirmative governmental act” (SAGA) to the six already delineated in the statute. Now, for the first time, a written determination by the zoning administrator can, under the right circumstances, be a SAGA. By statute, a SAGA can potentially vest rights to a use or density despite a change in the zoning ordinance. So the stakes can be quite high.

Here is an excerpted version of the outline on Vested Rights 2010, to give you an idea of the content of the webinar. Local government attorneys, zoning officials and staff members are welcome to contact me for the full outline.

Thanks to the over 200 local government attorneys, zoning officials and staff who participated, and the entire team that made the webinar a success!

We are planning another installment of the Sands Anderson Land Use Forum for Fall 2010, tentatively scheduled for November 17, 2010. What topic would you like to see presented?

Vested rights is a legal principle arising from common law under which a developer can acquire the property right to develop a specific project despite a change in zoning which would no longer allow the project.

In 1998, when codifying the common law of vested rights in Virginia Code § 15.2-2307, the General Assembly listed certain governmental approvals that were “deemed” to be “significant affirmative governmental acts allowing development of a specific project.” It codified the various acts that the Virginia Supreme Court had held were “significant affirmative governmental acts” — or SAGAs — that, together with good faith reliance and substantial sums spent in diligent pursuit, could lead to vested rights in a specific project despite a subsequent change in zoning. The codification added two more acts that the Supreme Court had never held were sufficient to be a SAGA — approval of a variance, and approval of a site plan (also called a plan of development).

Question: What did all of these governmental acts that were “deemed” to be a SAGA have in common?

Answer: A public process with public notice and a chance for public review. Granted, some localities approve site plans administratively, but many do not, or at least, the locality has the option for a public process before the planning commission or even the governing body.

But, with HB 1250, the General Assembly has added another act that is “deemed” to be a SAGA, but the act is not done in public. By its nature, it happens in private. A zoning administrator issues a “written order, requirement, decision or determination regarding the permissibility of a specific use or density” to a developer that meets the other requirements of HB 1250, and it is a SAGA.

No public review. No public notice. No other agencies reviewing it. Perhaps no one else in the local government or even the planning or zoning office even knowing. Little chance of elected officials learning. The administrative, non-public aspect of this has received criticism, such as in the Roanoke Times editorial, “A Letter isn’t Enough,” and Beth Wellington’s blog article, “Virginia General Assembly’s Gift to Stealth Development,” and deservedly so.

Despite calls for increased transparency in government, and the General Assembly’s requirement that local governments do nearly everything in the sunshine under the Freedom of Information Act, HB 1250 is a step in the opposite direction. With HB 1250, developers could start acquiring property rights from a government employee’s letter, and perhaps in some cases, even if the employee gets the law wrong. In such a case, this could potentially result in vested rights even if the zoning ordinance does not and has never allowed the development.

Time will tell if HB 1250 is a large expansion of vested rights or not. It does have limitations and requirements. To be a SAGA, the zoning administrator’s act must “no longer be subject to appeal” and it must be “no longer subject to change, modification, or reversal under” Virginia Code § 15.2-2311(C).

However, whether HB 1250 benefits many or just a few, this step is a big change by its very nature. It is a step toward government in the dark to the detriment of the public will as expressed by its elected officials. A major shift, indeed.