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Land Use Regulation from the Perspective of Four
Professionals
Phyllis C. Katz, Esquire
Ann Neil Cosby, Esquire
James E. Cornwell, Jr., Esquire
Andrew R. McRoberts, Esquire
Legal Foundation for Land Use Regulation
“If a policeman must know the Constitution, then why not planner?”
Justice Brennan (1981)
Phyllis C. Katz, Esquire
The Constitution Protects Individuals and Property
• 1st Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
• 4th Amendment – “The right of people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures…”
• 5th Amendment – “No person … shall be deprived of … property without due process of the law, nor shall property be taken for public use, without just compensation.”
• 14th Amendment – “… nor shall any State … deny to any person … the equal protection of the laws.”
Enjoyment of Property is Protected
• This means I have a constitutional right to use and enjoy my property.
• However, to the extent that my enjoyment interferes with my neighbor’s enjoyment of his property, my use may be restricted.
• Thus governmental regulation of private property is justified.
• And if the regulation denies the use of my property, compensation may be owed.
Government Can Only Restrict Private
Use of Property If …
• The actions are not arbitrary or capricious.
• Notice has been provided to the property owner(s) affected.
• Property owner(s) have had an opportunity to be heard and to challenge the action.
Purposes of Planning
• Improve public health, safety and welfare.
• Prepare for the future. – Adequate highways, utilities, educational and
recreational facilities.
– Recognize the needs of agriculture, industry, and business.
– Concentrate growth in selected areas.
• Make growth in the community consonant with the efficient and economical use of public funds.
Comprehensive Plan
Phyllis C. Katz, Esquire
Like It or Not, Every Jurisdiction Must Have …
• Comprehensive Plan
• Subdivision Ordinance
• Capital Improvement Plan
Comprehensive Plan
• Addresses the physical development of the land.
• Goal is to have coordinated and harmonious land development.
• It surveys, studies and maps existing conditions and development patterns.
• It designates the location of roads, historical areas, mineral resources, urban development areas, etc.
Development of the Comprehensive Plan
• Must be based on studies and analysis of present and future needs.
• Planning Commission is the engine behind the Plan. – Responsible for initial preparation – Responsible for recommending all revisions (every 5
years must be reviewed) – A careful and comprehensive study of existing
conditions and future growth requirements
• Board of Supervisors must adopt or amend it.
Legal Effect of Comprehensive Plan
• Both a guide (Va. Code § 15.2-2223)
– Must designate the approximate location, character, and extent of each feature.
– Must indicate where existing lands or facilities are to be extended, widened, removed, relocated, vacated, narrowed, abandoned, or changed in use.
• And a control to development (Va. Code § 15.2-2232)
– the comprehensive plan “shall control the general and proximate location, character, extent of each feature shown on the plan.”
• Capital Improvement Plan must be based on the Comprehensive Plan (it is adopted annually).
Conformity to the Comprehensive
Plan Mandatory
• “No street, no connection to an existing street, park or other public area, public building, … public utility facility … whether publicly or privately owned shall be constructed, established, or authorized, unless submitted to and approved by the Planning Commission as being in substantial accord with the adopted Comprehensive Plan.” Va. Code § 15.2-2232.
Proposed Use of Land Must Be in Conformity with Comprehensive Plan
• Planning Commission to review any deviation from Comprehensive Plan and after a public hearing, approve or disapprove amendment within 60 days.
• Applicant may appeal decision to Board of Supervisors.
• Board of Supervisors may overrule Planning Commission on petition of applicant or on its own. Board must act within 60 days.
Subdivision Regulation
Ann Neil Cosby, Esquire
Subdivision and Land Development Ordinances
• Virginia Land Subdivision and Development Act – Va. Code § 15.2-2240 et seq.
• Erosion and Sediment Control Law – Va. Code § 10.1-560 et seq.
• Stormwater Management Act – Va. Code § 10.1-603.1 et seq.
• Chesapeake Bay Preservation Act – Va. Code § 10.1-2100 et seq.
Subdivision Ordinance
• Primary tool for the implementation of the Comprehensive Plan.
• “Subdivision” is defined as the division of a parcel of land for the purpose of transferring land into: – Three or more lots;
– Lots of less than five acres;
– When any street is involved.
• Local ordinance may define “subdivision” differently.
Subdivision Ordinance
• Planning Commission responsible for preparing the ordinance. – Depends on staff – Depends on input from the community – Public hearings are held
• Board of Supervisors adopts after public hearing • Once adopted, planning staff administers the
provisions. • No plat may be recorded unless it has been
approved by the subdivision agent.
Subdivisions
• Mandatory Provisions for Subdivision Ordinances • Plat requirements, road coordination, drainage and flood control,
installation of water and storm and sanitary sewer and other public utilities or other community facilities, acceptance of dedications for public facilities/improvements, family subdivisions
• Optional Provisions for Subdivision Ordinances • Variances, sewage disposal approvals, notices regarding
applicable street standards, payment for off-site improvements, cluster developments, environmental assessments
Remember the Dillon Rule If authority is not in, implied from, or necessary to the
subdivision statutes, you cannot do it!
Subdivision Review
• Plat submitted to Locality for Review (typically Planning Commission or Subdivision Agent). – Plat is approved or denied, with reasons given
therefor.
– Plat sent to State Agencies as necessary.
– Plat may be resubmitted.
• If challenged, goes directly to Circuit Court.
Plat Approval is Administrative
• May consider Concept Plans, Preliminary Plats, Final Plats. – Approved preliminary plats remain valid for 5
years, provided final approval is sought. – Plat approval may raise vested rights issues.
• Plats cannot be denied if they meet requirements of Subdivision Ordinance. – Not a Legislative Action, – Even if approved by governing body.
Erosion and Sediment Control Law
• Erosion and Sediment Control (E&S) Programs are required for every locality. – Programs require submission and approval of E&S
plan prior to land disturbance of over 10,000 sq. ft.
– Agreement in lieu of a plan for single family residence.
• Purpose: To control soil erosion, sediment deposition, and non-agricultural run off.
• Typically administered by local staff.
• Program overseen by state (DCR).
Stormwater Management Act
• Stormwater Management Act and Permit Regulations. – Requires permit coverage for discharge of
stormwater from construction activity. • For new construction or redevelopment.
– Requires permit for discharge of stormwater through a stormwater conveyance system owner or operated by a government entity.
• Municipal Separate Storm Sewer System (MS4).
2004 General Assembly Action
• Consolidated responsibility for Virginia’s Stormwater Management. – Called for amendments to the Stormwater
Regulations. • To combine & revise technical standards for
Construction Permits.
• To transfer administration of Construction Permits to local level.
• Effective January 29, 2005 – DCR and SWCB.
New Local Stormwater Program Requirements
• Local SWM programs must be adopted by: • Localities covered by Chesapeake Bay Preservation Act
(CBPA) Area. • Localities which have MS4 permits.
• Other localities may elect to adopt a local program. • Known as “Opt-In.” • If local program is not adopted, DCR will administer SWM
permits for the locality. • “Opt-In” localities have 6 months to notify DCR of their
intention to adopt own program (Spring 2012). • New Regulations (including fees, implemented on July
1, 2014).
Stormwater Management Program Administration
Localities with MS4 permits and localities within the CBPA Area must adopt a local stormwater management program. (yellow)
All other localities may elect to adopt a local SW construction program (Opt-in). Otherwise, DCR will operate a program within a locality. (red)
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Chesapeake Bay Act • Requires the 84 localities in Tidewater, Virginia, to
identify the Chesapeake Bay Preservation Areas within their jurisdictions. • Localities must incorporate protection of the quality of state
waters into each locality’s comprehensive plan. • Must have zoning ordinances which incorporate measures to
protect the quality of state waters in the Chesapeake Bay Preservations Areas, and zoning in such areas must comply with all criteria established by the State.
• Must incorporate protection of the quality of state waters in Chesapeake Bay Preservation Areas into their subdivision ordinances, and ensure that all subdivisions developed pursuant to their subdivision ordinances comply with all criteria developed by the Board.
• Optional for other non-Tidewater localities.
Zoning
James E. Cornwell, Jr., Esquire
Important: Consider Your Appointments to PC and BZA
• The Planning Commission and the Board of Zoning Appeals are what you make them.
• Search for good candidates that share your philosophy of government and, once they are appointed, listen to their opinions.
• Appointees should be property owners and residents in the County.
Let PC Do Its Work: Joint Meetings Only Rarely
• One of the benefits of having a Planning Commission is to have them do the “heavy lifting” in – conducting the initial public hearing, and – sorting out the appropriate information and making a
recommendation. • Therefore, a joint meeting defeats that purpose –
no time to have the details of the desired changes worked out, not time to contemplate proposed action.
Let the PC Do Its Work
• The PC should be the Board’s “sounding board” to receive comments and make recommendations to the BOS.
• You don’t have to always take the advice, and the PC members should be aware that you may not, but, provided you appoint good people to the PC, their recommendation should be seriously considered by the BOS.
• When disagreeing with recommendations, the record should reflect the basis for the change.
Build a Record
• Application
• Staff Report
• Planning Commission Record
• Comprehensive Plan
Applications
• At minimum: • Tax Map ID • Record owner(s)- with all signing- copies of deeds • Specify request for rezoning or special use • Current use of property • Planned use of property • Current Infrastructure and infrastructure improvements
planned or that may be needed for proposed use • Comprehensive Plan provisions applicable to property
and application • Complete list of adjoining property owners, including
across the street
Staff Report • At a minimum in its report Staff should:
• Confirm all factual information in application is correct, • Provide site map from County GIS, • Provide soil map of property, • Provide comprehensive plan information, and • Review current infrastructure to determine if it will
support project. • Make a recommendation:
• If special use or conditional use permit application- recommend conditions.
• If rezoning- recommend approval or denial based on comprehensive plan, infrastructure, soil map, etc.
Always Consider and Address Comprehensive Plan – Amend as Necessary • The first question in reviewing any zoning
application should be “Is the application supported by the County
Comprehensive Plan.” • If it is not then the application should either be
denied or tabled until the Comprehensive Plan is amended.
• Staff should have the authority to advise applicants if their application is not supported by the Comprehensive Plan. This allows the applicants to apply to have the Plan amended or to revise the application.
If Application for Special Use or Conditional Use Permit – Impose Conditions
• Conditions can be imposed upon the proposed use of the land.
• These conditions can originate from the Staff report, the application, the PC report or can be imposed after the public hearing.
• Conditions must be based on physical operation of the use.
Consider and Address the Infrastructure Necessary to Support Project
• From review of the application and the PC and staff report, a key question is whether the existing infrastructure will support the rezoning?
• If not, what proffers from the applicant will improve the infrastructure, and has the developer offered those improvements?
• And can the County legally accept these proffers?
Consider Adoption or Review of Ordinance on Cash Proffers
• If your County does not accept cash proffers, have the PC and staff look at adopting the necessary ordinances and make a recommendation.
• The proposed development may cover the cost of operation but not the capital cost associated with construction and operational needs, e.g. schools and EMS.
Take Your Time – 1 Year
• Don’t “act in haste and regret at leisure.”
• Take your time.
• The Code of Virginia allows you up to 1 year for consideration.
• Property owners and developers will push for a quick decision but give each application due consideration.
Procedural Defects are Deadly
• The Code of Virginia provides MANDATORY procedural steps such as advertising and notice which MUST be met.
• Prior to public hearing, have staff review to ensure all procedural mandates have been met.
• If a procedural defect is found, STOP and start over.
Reference Record in Motion to Approve or Disapprove
• The best defense to a challenge of a zoning decision is that your decision was based upon the Comprehensive Plan and the record before you.
• The application, staff report and PC report all constitute the record in any case before you.
• By reviewing the record, you gain insight into the consequences of approval or denial of the application and you can cite the record to support your Motion and the BOS action to approve or deny the application.
Land Use Appeals and Litigation
Andrew R. McRoberts, Esquire
Land Use Appeals – Overview • Appeals are solely statutory. Sovereign immunity
prohibits lawsuits against localities unless authorized. • BZA hears appeals from any “order, requirement,
decision or determination” of zoning administrator, Va. Code 15.2-2311, except proffer orders of zoning administrator, Va. Code 15.2-2301. Also variance, and if allowed, SUP applications.
• Circuit Court hears appeals from BZA decisions or Board of Supervisors zoning ordinance decisions. Va. Code 15.2-2314.
• Circuit Court also tries in first instance certain disputes over subdivision and other land use ordinances, and decisions on subdivision, site plan, plan of development or other land use decisions by declaratory judgment action. Va. Code 8.01-184.
Zoning Decision Appeals to BZA
• Va. Code 15.2-2311 allows “any person aggrieved” or the locality or any part thereof affected by any “order, requirement, decision or determination” of the zoning administrator or other similarly authorized person to appeal to the BZA within 30 days.
• Written notice of appeals rights, fees and where to get additional information required for either a (i) written notice of zoning violation or (ii) other written order of zoning administrator.
Proffer Appeals to Governing Body
• Va. Code 15.2-2301 carves out appeals of one type of “order, requirement, decision or determination” by the zoning administrator for consideration by the governing body, not the BZA – administrative proffer orders and enforcement decisions per 15.2-2299.
• Must be filed w/ zoning administrator and the clerk to governing body (county administrator in traditional county form) within 30 days and specify grounds for being “aggrieved.”
Appeals of BZA Decisions to Circuit Court
• Any “person aggrieved” by BZA decision may appeal to circuit court. 15.2-2314.
• Petition for writ of certiorari required to be filed with circuit court clerk within 30 days of BZA decision.
• BZA’s only role is to submit the record to the circuit court. Filings, minutes, etc. Only BZA’s findings of fact, if any, are presumed correct by circuit court.
• “The governing body, the landowner, and the applicant before the BZA shall be necessary parties to the proceedings.” Other interested persons may intervene.
Appeals Directly to Circuit Court • “Every action contesting a decision by a local
governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception [aka SUP, CUP] shall be filed within thirty days of the decision with the circuit court….” Va. Code 15.2-2285(F).
• Special Case: Although not “appeals,” determinations of vested rights may be sought directly in circuit court. BOS of Stafford County v. Crucible, 278 Va. 152, 677 S.E.2d 283 (2009). (Or from the zoning administrator, Va. Code 15.2-2286(A)(4), with an appeal to the BZA, 15.2-2311.)
Declaratory Judgment Actions in Circuit Court
• Unless some other means of “appeal” is permitted/required, Virginia Code sections 8.01-184 through 8.01-191 may allow a challenge to other zoning and land use decisions (i.e., subdivision decisions).
• “In cases of actual controversy, circuit courts … shall have power to make binding adjudications of right…. Controversies involving the interpretation of … statutes, municipal ordinances and other governmental regulations, may be so determined….” Va. Code 8.01-184.
Declaratory Judgment Actions in Circuit Court
• Declaratory Judgment requires an “aggrieved” plaintiff – more than just any taxpayer or citizen. Must have some special right or interest, beyond those possessed by the general public.
• “When used in a statute, the term contemplates ‘a denial of some personal or property right, legal or equitable.’ Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415, 419-20, 344 S.E.2d 899, 902-03 (1986).” Vulcan Materials Co. v. Board of Supervisors, 248 Va. 18, 24, 445 S.E.2d 97 (1994).
Declaratory Judgment Actions in Circuit Court
• Declaratory judgment actions are supplementary to existing causes of actions and appeals.
• Dec Actions are not intended to be filed when there is another statutory means or adequate remedy at law.
• Dec Actions are not intended to address matters that are moot.
Land Use Litigation in Circuit Court
• Land use litigation, except on appeal from BZA, is almost always filed as a declaratory judgment action.
• Land use litigation is going to happen because you are a decision-maker in a political environment on issues important to people. Cannot make everyone happy.
• Courts will generally defer on your legislative land use decisions on substantive challenges, but NOT on procedural challenges. Follow statutes strictly!
• There are always steps that can be taken to avoid litigation or make it more likely you will prevail if sued. Consult your experienced local government land use attorney early and often.
Questions?
Sands Anderson PC 1111 East Main Street Richmond, VA 23219
Phyllis C. Katz, Esquire [email protected]
(804) 783-7287
Ann Neil Cosby, Esquire [email protected]
(804) 783-7225
Andrew R. McRoberts, Esquire [email protected]
(804) 783-7211
Sands Anderson PC 150 Peppers Ferry Road, NE Christiansburg, VA 24073
James E. Cornwell, Jr., Esquire
[email protected] (540) 260-9011
