VA Supreme Court of Virginia Holds Cluster Development Statute Did Not Apply to Developers’ Proposed Cluster Development Plans

This post was authored by Matthew Loescher, Esq,

Two real estate developers, D.R. Horton, Inc. and Metts, L.C. owned properties in Stafford County. Roughly forty percent of each parcel was located within the Stafford County Urban Services Area, which was the area that Stafford County had designated for the provision of public water and sewer service. Stafford County adopted a comprehensive plan for land use, as required by Code § 15.2-2232. This comprehensive plan showed public facilities, such as sewer lines, and designated an “Urban Services Area” where the County will provide public water and sewer service. Real estate developers filed petitions against county challenging county planning department’s determination that developers proposed development plans would need to undergo a comprehensive plan compliance review, and sought writs of mandamus requiring county to approve their development plans, writs of prohibition preventing county from ordering a comprehensive plan review, declaration that county must approve their plans. After developers’ petitions were consolidated, the Stafford Circuit Court, ruled in favor of the developers.

At the outset, the court noted that the two properties at issue were only partially located within an area designated for water and sewer service. Thus, by its plain terms, Code § 15.2-2286.1(B) did not apply. Since Code § 15.2-2286.1(B) did not control, Code § 15.2-2232 was applicable, and required the Developers to submit their plans to the planning commission for review.

The court next reviewed the circuit court’s determination that the Planning Commission’s prior approvals in 2005 and 2007 meant that no further approval was needed. The record reflected that the Planning Commission’s prior review and approval pursuant to Code § 15.2-2232 did not cause any change to the comprehensive plan. Furthermore, the court noted that it is the governing body of the locality, not the planning commission, that must approve the comprehensive plan and any changes to that plan. Here, while the Planning Commission approved prior projects in 2005 and 2007, those prior approvals were expressly limited to those specific applications and did not by their terms signify approval of different plans filed later. Accordingly, the court reversed the judgment and remanded the case for the County Planning Commission to conduct a review pursuant to Code § 15.2-2232.

Stafford Count v D.R. Horton, Inc., 856 S.E. 2d 197 (VA 4/1/2021)