Posted by: Patricia Salkin | March 24, 2011

Fourth Circuit Finds No Merit to Due Process or Regulatory Takings Claims Where Property Owner Conditional Use Permit Limited the Number of Units That Could be Built

Henry owned four adjoining parcels of land and resided in a single-family home on Parcel A.   The parcels were located on land zoned rural-agricultural but Henry still operated a restaurant on Parcel C.   After the restaurant burned down, Henry applied for a conditional use permit (“CUP”) to develop 76 townhouses on some of that property.  The CUP was denied but the Virginia Court of Appeals reversed and remanded the matter because the Board of Zoning Appeals (“BZA”) failed to set forth sufficient factual findings.

Henry later applied for another CUP which was granted but limited his development to 51 townhouse units.  Neighbors appealed the decision and ultimately the Circuit Court reversed because the Planning Commission did not enter sufficient factual findings. The case was remanded but not dealt with until 3 years later.  Eventually, Henry sold the property to investors.  The litigation did not end, however. Henry brought several other lawsuits.

Henry claimed the Planning Commission took his property when it granted him a 14-unit CUP instead of the compromised 51 unit CUP for which Henry claimed he was entitled.    The Court disagreed with Henry and determined that he was not entitled to a permit for the 51 unit CUP because the Planning Commission has discretion in issuing such permits.  Moreover, in the absence of uncontradicted expert evidence, the Planning Commission had the authority to deny the CUP.  Henry also alleged an ordinary regulatory takings claim but the Court determined that his property was never subjected to physical invasion or a reduction in value.

Additionally, Henry claimed that the CUP process violated his substantive and procedural due process rights.  The Court dismissed his substantive due process claims because he failed to prove that the state deprived him of a property interest and that the action was outside the scope of legitimate government action where no process could possibly cure the deficiency.  Similarly, the Court dismissed Henry’s procedural due process claims, particularly in light of the years and years of litigation.  Here the Court affirmed the judgment of the district court

Henry v. Jefferson Co. Com’n, 2011 WL 72466 (C.A.4  3/3/2011)

The opinion can be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: