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Author Archives: Karen L. Cohen

  1. The Lay of the Land: Where Does Land Use Law Come From?

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    The Lay of the Land is a blog series by Real Estate and Land Use practice chair, Karen Cohen, on land use law starting with “the basics.”  The first post explained what land use law is and what land use lawyers do. This post addresses where land use law comes from and public involvement in land use matters.  Future posts will discuss conditional zoning (rezonings and proffers, special permits, etc.), and permitting basics. More in-depth land use topics will follow.

    Where Does Land Use Law Come From?

    Say you want to build a deck on the back of your house, but the zoning administrator for your city, county or town tells you that your deck can’t be quite the size you had in mind. Let’s say you had proposed a deck 18 feet wide by 15 feet deep.  You learn that, at that depth, the deck would encroach one foot into the yard’s mandated rear setback, a required minimum distance from your property line.  Therefore, if you want to build the deck, you need to make the deck 14 feet deep (not 15 feet) to comply with this setback requirement in the local zoning ordinance. Where does your city, county or town get the authority to define a minimum rear setback and tell you that the deck may not protrude into that setback area?  Answer:  From the state legislature.

    The authority of local governments in Virginia to regulate land use derives from the state.  Virginia is what is referred to as a “Dillon Rule” state, meaning that local governing bodies have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.[1]  In particular, the planning and zoning power of Virginia localities is set forth in the enabling legislation contained in Title 15.2 of the Code of Virginia, entitled “Counties, Cities and Towns,” and in Chapter 22 thereof, entitled “Planning, Subdivision of Land and Zoning.”  Within these sections of the Code, the state legislature has prescribed the authority (and limitations on such authority) of local governments to zone property, regulate uses within zoning districts, and comprehensively plan for future land uses.

    Nevertheless, the scope of planning and zoning authority is broad, as evidenced by the legislature’s declaration of the intent of Chapter 22:

    This chapter is intended to encourage localities to improve the public health, safety, convenience, and welfare of their citizens and to plan for the future development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational, and recreational facilities; that the need for mineral resources and the needs of agriculture, industry, and business be recognized in future growth; that the concerns of military installations be recognized and taken into account in consideration of future development of areas immediately surrounding installations and that where practical, installation commanders shall be consulted on such matters by local officials; that residential areas be provided with healthy surroundings for family life; that agricultural and forestal land be preserved; and that the growth of the community be consonant with the efficient and economical use of public funds.

    Va. Code § 15.2-2200.

     

    Public Involvement in Land Use Matters

    In prescribing the local government’s specific authority to carry out these broad purposes, “the General Assembly of Virginia has undertaken to achieve in the enabling legislation a delicate balance between the individual property rights of its citizens and the health, safety and general welfare of the public as promoted by reasonable restrictions on those property rights.”[2]  Consistent with the enabling legislation’s effort to achieve a “delicate balance” between private property rights and the public interest, the public is part of the legislative land use approval process.

    Perhaps you have noticed from time to time a large sign staked on property advertising a “PUBLIC HEARING.”  This, too, derives from state law.  Citizen engagement is a critical part of land use planning and approvals, and the enabling legislation recognizes this, requiring notice and a public hearing as prescribed, before the local planning commission may recommend or the governing body may adopt any plan, ordinance or amendment to a plan or ordinance.  See Va. Code § 15.2-2204 (requiring notice to be “published once a week for two successive weeks in some newspaper published or having general circulation in the locality; . . .”).

    The precise process for legislative land use approvals depends on the jurisdiction; however, generally speaking, the public will have the opportunity to comment on land use applications requiring legislative approval (i.e., a vote by the governing body) during at least two public hearings – first, before the Planning Commission, which serves primarily in an advisory capacity to the governing body, Va. Code § 15.2-2210, and next, when the governing body (e.g., Town Council, County Board of Supervisors, City Council) meets and votes to approve or deny the application.  Prior to those hearings, citizen engagement also may occur during project presentations to homeowners’ and civic associations, as well as public work sessions for certain projects.

    Before the matter ever gets to the public hearing stage, however, the applicant and the staff of the county, city or town, as applicable, are engaged in reviewing and commenting on the application.  Typically, planning staff will review the application, circulate it to a number of state and county reviewing agencies, and engage in several rounds of comments and responses with the applicant. Reviewing agencies include, for example, state and county transportation, environmental, archaeological and historical, sewer and water, and public safety (police, fire and rescue) departments.  After the staff and review agency comments have been resolved, planning staff prepares a “staff report” containing its analysis and recommendation.  Depending on the complexity of the project involved, the process takes at least several months, or even one to two years, and sometimes even longer.  If the initial application is incomplete or contains errors, it may be rejected, and this will prolong the approval process.  Having an experienced land use attorney on your team will help to keep the project on track.

    [1] The rule is so named because it derives from a written decision by Judge John F. Dillon of Iowa in 1868.

    [2] Bd. of Sup’rs of Fairfax Cty. v. Horne, 215 S.E.2d 453 (1975).

  2. The Lay of the Land: What Is Land Use Law?

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    The Lay of the Land is a blog series by Real Estate and Land Use practice chair, Karen Cohen, on land use law starting with “the basics.”  This first post discusses what land use law is and exactly what land use lawyers do.  Upcoming articles will review the land use regulatory framework in Virginia, and provide an explanation of conditional zoning (rezonings and proffers, special permits, etc.), and permitting basics.  More in-depth land use topics will follow.

    What Is Land Use Law?

    Land use law is the body of state, local and federal laws and regulations governing the development and use of land (and buildings or structures on the land) and the planning of a community’s future land uses.  Land use and development of the built environment is intertwined with nearly every aspect of human existence – where people live and work; where goods are manufactured; access to water and other natural resources; how people travel from place to place; and where people gather for religious or civic purposes, education, and entertainment.  Because land use touches so many aspects of life, the legal framework is necessarily interdisciplinary.

    Consider, for example, an application by a landowner for a special use permit to build a manufacturing facility on vacant land, or a dispute involving residents opposed to the expansion of a parking lot on church property adjacent to their neighborhood.  These land use matters potentially implicate zoning law, environmental law, and constitutional law.  In the land use context, constitutional issues often arise with respect to claims relating to the impact of land use restrictions on speech or religious exercise under the First Amendment, takings claims under the Fifth Amendment, and due process and equal protection claims under the Fifth and Fourteenth Amendments, arising from land use restrictions imposed by a local government or from a local governing body’s denial or unlawful conditioning of the approval of a particular project.

    Within this interdisciplinary legal framework, the practice of land use law involves interaction with a wide variety of professionals and groups, including local government officials, planners, civil engineers, traffic engineers, environmental and archaeology consultants, architects, developers, activists and citizen associations.  In addition to analyzing the law and advising their clients, land use lawyers spend their time meeting or communicating with the aforementioned professionals, presenting information to citizens’ groups about clients’ pending projects, and attending public hearings on behalf of clients.  As land use lawyers, we enjoy the multidisciplinary nature of the practice and the interaction with allied professionals on the team to strategize and work collectively to resolve land use issues for our clients.

    We also enjoy helping our clients navigate what can be a confusing and Byzantine process.  Whether you need assistance with a land use application, representation before a Board of Zoning Appeals, or representation in connection with a land use dispute in state or federal court, Protorae Law attorneys can help you with your land use and zoning needs.

  3. A Good Time for Virginia Developers to Re-Evaluate Approved Plans

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    In light of current economic conditions, some developers are requesting extensions for approved plans that are otherwise set to expire by the statutory deadline of July 1, 2020.  See Va. Code § 15.2-2209.1.  The enabling legislation expressly grants localities the authority to agree to a longer period and some Northern Virginia jurisdictions recently provided for extensions.

    With this renewed focus on approved but inactive plans, it is a good time for developers to take a hard look at those plans to ensure alignment with current conditions and development objectives, especially in light of the Virginia Supreme Court’s 2019 decision in Loch Levan Land Limited Partnership v. Board of Supervisors of Henrico County (August 22, 2019), discussed below.

    Virginia’s Statutory Scheme

    It is important to begin with some background on Virginia’s statutory scheme for the validity period of certain approvals.  Site plans and plats typically have a five-year validity period once they are approved by the local jurisdiction.  See Va. Code § 15.2-2260(F) and Va. Code § 15.2-2261(A).  Additionally, rezonings and special use permits typically have conditions requiring the landowner or developer to commence the project or incur significant expenditures related to improvements for the project within a certain time.

    To address the housing crisis in 2008-2009, the General Assembly has, on several occasions, extended these plat/plan validity dates and project commencement/expenditure deadlines, with the last such enactment extending the validity period until July 1, 2020.   The enabling legislation has always permitted “a longer period as agreed to by the locality.”  Va. Code § 15.2 -2209.1.  The COVID-19 induced economic crisis has led some Northern Virginia jurisdictions to extend the statutory deadline for the validity of subdivision plats, site plans and certain other approvals.

    A deadline extension may prove helpful to a developer who needs additional time to activate an approved plan.  The Loch Levan case also serves as a reminder that, even if an extension is granted, it is prudent to reassess existing plans to ensure that they continue to align with current conditions and the developer’s objectives.

    A Road to Nowhere – Loch Levan

    In Loch Levan, a developer sought to extend a road that ran through a residential subdivision.  At the time that the developer recorded the plat for the section of road at issue, it anticipated connecting the road to additional development to the north at a future date. The developer had obtained final plat approval to connect the road as depicted on its recorded plat; however, the developer did not act on the approved plat within five years, and when it sought to do so 25 years after the approval, it faced opposition from neighbors, and in response to the concerns raised by the citizens, the county removed the relevant portion of the road from its major thoroughfare plan.

    The developer challenged the county’s action, claiming it had a right to indefinite validity under Va. Code 15.2-2261(F), pursuant to which an approved final subdivision plat remains valid indefinitely, subject to certain exceptions, when a portion of the property subdivided has been conveyed to third parties (other than the developer or a local jurisdiction) — think of an approved plat for a residential subdivision where lots are being sold to purchasers (“third parties”), over an extended period of time.

    The court found that this provision did not apply because the developer, in order to save money, had elected to record the plat dedicating the road without subdividing the property into lots, and thus, the five year validity period in 15.2-2261(C) rather than the indefinite period in 15.2- 2261(F) applied: “[The developer’s] election to segment the plats for Dominion Club Drive allowed it to avoid ‘spend[ing] money’ to complete the road, but it lost the indefinite protection offered by Code § 15.2-2261(F).”  The court also rejected the developer’s argument that it had a vested property right in the continuation of the road, concluding that the developer “had a statutory right to construct the road within five years” but “forfeited that right through inaction.”

    Conclusion

    While developers certainly will benefit from deadline extensions during these uncertain times, the Loch Levan case also serves as a cautionary reminder to re-evaluate plans that have been sitting on the shelf for a while – the plan that seemed prudent four or five years ago may not be today.