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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).