Posted by: Patricia Salkin | September 16, 2019

VA Supreme Court Finds City Did Not Violate Any of Property Owner’s Procedural Due Process Rights by Rezoning Land It Had Annexed from County

This post was authored by Matthew Loeser, Esq.

In 1970, Bragg Hill Corporation submitted a master plan concerning the development of property that it owned in Spotsylvania County to the Spotsylvania County Planning Commission for approval. As the County required the submission of master plans for approval by the County Planning Commission whenever an owner or developer proposed to develop a large subdivision consisting of multiple sections, Bragg Hill presented a revised master plan in 1972. The County Planning Commission approved the Revised Master Plan, and approved the final subdivision plats of the first six sections of the Bragg Hill Townhouses project. In 1973, the County adopted a zoning ordinance, pursuant to which all of the property in Bragg Hill’s Revised Master Plan was zoned R-2, a zoning classification that allowed a development density of eight dwelling units per acre. In 1984 the City annexed 2,963 acres from the County, which included the property. Pursuant to Fredericksburg City Code § 18.1-17, which was enacted in 1972, upon annexation the annexed land—including the property—was automatically zoned into the City’s R-1 zoning classification. Under this zoning classification, there was a permissible housing density of two dwelling units per acre.

In 2009, Bragg Hill filed a request that the City’s zoning administrator determine that Bragg Hill had the vested right to develop the property according to the Revised Master Plan, despite the property being zoned R-1 by the City. The zoning administrator found that even if the plans had been approved by the County Board of Supervisors, their approval expired after five years under Code § 15.2-2260(F), and thus no significant affirmative governmental act remained in effect. Bragg Hill appealed the zoning administrator’s determination to the Board of Zoning Appeals, which upheld the zoning administrator’s decision. Bragg Hill did not appeal the BZA’s determination.

On appeal, Bragg Hill claimed that the rezoning that occurred upon the annexation of the property in 1984 was void ab initio because it was not affected by ordinance, written resolution, a planning commission, or a comprehensive plan. The court found that since Fredericksburg City Code § 18.1-17 was within the scope of the City’s authority granted by Code § 15.1-491(b), it validly authorized the City’s zoning of the annexed property as R-1 upon its annexation. As such, the R-1 zoning classification imposed upon the property upon its annexation by the City was not void ab initio, and the circuit court did not err in dismissing this claim.

The court next found that Bragg Hill failed to exhaust the remedies provided by the General Assembly regarding the administrative determination it sought concerning its alleged vested right. As such, the BZA’s denial of Bragg Hill’s vested right in the Revised Master Plan was a “thing decided,” and Bragg Hill could not collaterally attack that decision. Additionally, if Bragg Hill wanted the circuit court to determine its vested rights claim, it could have done so by a timely appeal of the BZA’s affirmance. The court further held that to permit Bragg Hill to seek a vested rights determination in circuit court, beyond the 30-day appeal period following the BZA’s determination, would render Code § 15.2-2314 meaningless. Accordingly, the circuit court did not err in granting the special plea regarding exhaustion of administrative remedies.

Lastly, Bragg Hill contended that minimum procedural due process under the Federal and Virginia constitutions required notice and hearing, and the City violated that due process right by its failure to hold a public hearing regarding the rezoning of its property upon its annexation. The court rejected this claim, finding Bragg Hill did not have a vested property right in the development of the property pursuant to the Revised Master Plan such as to warrant procedural due process protection. Furthermore, Bragg Hill did not have a vested right “in the continuation” of the property’s zoning status before annexation, since even if Bragg Hill had a vested right to develop the property according to the Revised Master Plan, the change of the property’s zoning upon it being annexed did not deprive it of that vested right. Therefore, the City was found to have not violated any of Bragg Hill’s procedural due process rights.

Bragg Hill Corporation v. City of Fredericksburg, 831 S.E.2d 483 (VA. 2019)

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