Posted by: Patricia Salkin | February 25, 2014

VA Supreme Court Holds that Landowner did Not Acquire Vested Right in Planned Use of His Property to Develop a Cluster Subdivision

In 2007, the County’s Board of Supervisors of Prince George County adopted a new zoning ordinance that included a set of provisions, entitled collectively the “CLO Cluster Overlay District” permitting the development of cluster subdivisions. McQueen, who planned to develop one of these such cluster subdivisions, filed a declaratory judgment action seeking a determination whether he was entitled to develop his property by right or only pursuant to a special exception. Following this, McQueen nonsuited the action upon receiving a “compliance letter” from Thompson around June 19th. McQueen then sought a declaration that he obtained a vested right under Code § 15.2–2307 to develop his property “as a by-right cluster subdivision”.

The Court discussed that pursuant to Code § 15.2–2307, a landowner may establish a vested right in a land use when he “(i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.” The court held that McQueen’s right to pursue his project as a “permitted use by-right” pursuant to the express terms of CLO Ordinance § 90–332.4(A) did not derive from a discretionary act of a local zoning administrator, but rather the legislative action of the Board in adopting the CLO Ordinance. Furthermore, because the zoning administrator’s issuance of the confirmation letter was not a significant affirmative governmental act, the circuit court erred in holding that McQueen acquired a vested right under Code § 15.2–2307 to develop his property as a cluster subdivision. The court therefore entered judgment for the county.

Bd. of Sup’rs of Prince George County v. McQueen, 752 S.E.2d 851, 856 (Va. 1/10/2014)

The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1130279.pdf


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