Board of Supervisors v. McQueen

• Court: Supreme Court of Virginia
• Decided: January 10, 2014
• Docket: 130279
• Status: Published

Opinion

Present: All the Justices

BOARD OF SUPERVISORS OF PRINCE GEORGE COUNTY, ET AL. OPINION BY v. Record No. 130279 JUSTICE ELIZABETH A. McCLANAHAN January 10, 2014 JOHN B. MCQUEEN

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY W. Allan Sharrett, Judge

In this appeal, we consider whether the circuit court erred

in holding that the landowner, John B. McQueen (McQueen),

acquired a vested right under Code § 15.2-2307 to develop his

property in Prince George County (the County) as a cluster

subdivision. We conclude that the "compliance letter" McQueen

received from the County zoning administrator, upon which his

vesting claim was based, did not constitute a "significant

affirmative governmental act" as required under Code § 15.2-2307

for a land use right to become vested. Therefore, we will

reverse the judgment of the circuit court.

I. BACKGROUND

A. The CLO Ordinance

The County's Board of Supervisors (the Board) in 2007

adopted a new zoning ordinance that included a set of

provisions, entitled collectively the "CLO Cluster Overlay

District" (hereinafter, the "CLO Ordinance"), permitting the development of cluster subdivisions. 1 CLO Ordinance §§ 90-332.2

through -332.16. A cluster subdivision proposed in accordance

with the standards contained in the CLO Ordinance was a

"permitted use by-right." CLO Ordinance § 90-332.4(A). The

standards consisted of categories of both general and specific

requirements. CLO Ordinance §§ 90-332.6 through -332.14. The

four general standards, which are implicated here, pertained

only to minimum acreage, the provision of water and sewer, the

exclusion of conservation areas, and the number of dwelling

units allowed per acre. CLO Ordinance §§ 90-332.6.

In the application process for developing a cluster

subdivision, the applicant was required to meet with the zoning

administrator to review the requirements for a proposed cluster

subdivision, arrange a site visit, and prepare a "property

resource map" of the proposed site depicting such items as, for

example, total acreage, slope percentages, flood plains,

historic structures and woodlands. CLO Ordinance § 90-

332.16(A). The applicant was then required to submit a

preliminary plat in accordance with the County's subdivision

regulations. 2 CLO Ordinance § 90-332.16(B). Finally, upon the

1 The CLO Ordinance was described as "offer[ing] an alternative to conventional subdivision development by allowing for compact clusters of housing units rather than spaced lots that encompass the entire property." CLO Ordinance § 90-332.2. 2 The following additional items were also required to accompany the preliminary plat under CLO Ordinance § 90-

2 County's approval of the preliminary plat, the applicant was

required to submit a final plat in accordance with the County's

subdivision regulations. CLO Ordinance § 90-332.16(C).

B. McQueen's Proposed Development

McQueen, an owner of a large tract of land in the County,

initiated plans to develop his property as a cluster

subdivision. In early May 2008, McQueen and his engineer "met

informally" with Pamela Thompson (Thompson), the Deputy County

Administrator and Interim Director of Planning, to review the

requirements for such use of McQueen's property. McQueen's

attorney subsequently submitted an "application" letter to

Thompson describing in general terms McQueen's proposed

development of "approximately 250 clustered residential

dwellings," and "request[ing] a formal meeting" as required

under CLO Ordinance § 90-332.16(A).

McQueen, his engineer, and attorney, then met with Thompson

on May 23, 2008. McQueen presented Thompson with a document

consisting of a combined resource map and draft of a preliminary

plat of McQueen's proposed development, and the four of them

reviewed it that day. It was only after the May 23rd meeting,

McQueen's engineer confirmed, that "we put together a formal

332.16(B): notation on the plat of all conservation and open space areas; deed restrictions and covenants that would apply to private streets, public services, open space, and cluster subdivision lots; and the location of the building lots to be conveyed.

3 submittal of the preliminary plat for the [C]ounty," which, he

acknowledged, was filed on July 1. He further indicated that

the draft of the preliminary plat "could have changed" between

May 23rd and July 1.

After the May 23rd meeting, McQueen expected to receive "an

approval letter within days" from Thompson. When that did not

occur, McQueen 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. Shortly

thereafter, McQueen nonsuited the action upon receiving a

"compliance letter" from Thompson around June 19th.

C. Thompson's Compliance Letter

In the compliance letter, Thompson recited the four general

standards set forth in CLO Ordinance § 90-332.6 and indicated

that McQueen's property met those standards. Thompson then

stated, "[p]lease let this letter serve as notice that your

property does meet the provisions of the CLO [O]rdinance for by-

right development in Prince George County." (Emphasis added.)

Thompson also advised that McQueen would "need to meet all other

applicable provisions of federal, state, and local codes." In

addition, she explained, "[o]nce final approval of the proposed

development is obtained through the CLO [O]rdinance you will

need to obtain Site Plan Approval and a Land Disturbance Permit

prior to beginning any work on the site." According to

4 Thompson, the letter was not required by the CLO Ordinance, and

it did not approve a specific project.

D. McQueen's Present Declaratory Judgment Action

Several months after Thompson issued the compliance letter,

the Board repealed the CLO Ordinance. In response, McQueen

filed this declaratory judgment action against the County and

the Board (collectively, "the County"). McQueen sought a

declaration that he obtained a vested right under Code § 15.2-

2307 to develop his property "as a by-right cluster subdivision"

in accordance with the terms of the CLO Ordinance.

Under 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 statute does not

define what constitutes a significant affirmative governmental

act. Instead, it provides a list of seven acts "deemed to be

significant affirmative governmental acts." 3 Id. The list is

3 The seven "deemed" significant affirmative governmental acts in Code § 15.2-2307 consist of the following: (i) accepting proffers related to a zoning amendment; (ii) approving a rezoning application, (iii) granting a special exception or use

5 non-exclusive, however, as the statute expressly provides that

the list is "without limitation." Id. At the time Thompson

issued the compliance letter, the statute listed acts one

through six; the seventh act was added by legislative amendment

in 2010. See 2010 Acts ch. 315. 4

McQueen asserted that Thompson's compliance letter

constituted a significant affirmative governmental act, that he

relied in good faith on that act, and that he incurred extensive

obligations and substantial expenses in diligent pursuit of

developing his property as a cluster subdivision. Therefore,

McQueen concluded, he met the three elements set forth in Code §

15.2-2307 for the vesting of a right to use his property for

that purpose.

As to the first statutory element, McQueen acknowledged

that the compliance letter did not represent any one of the six

significant affirmative governmental acts listed in Code § 15.2-

2307 at that time. Rather, McQueen contended, the letter

permit, (iv) approving a variance, (v) approving a preliminary subdivision plat, site plan or plan of development, (vi) approving a final subdivision plat, site plan or plan of development, and (vii) issuing a written order, requirement, decision or determination regarding the permissibility of a specific land use that is no longer subject to appeal and that is no longer subject to change or reversal under Code § 15.2- 2311(C). 4 Code § 15.2-2307 was also amended in other respects by 2010 Acts ch. 698, however, those amendments are not germane to the issues considered in this appeal.

6 constituted a significant affirmative governmental act under

this Court's case law, citing Board of Supervisors v. Crucible,

Inc., 278 Va. 152, 158-61, 677 S.E.2d 283, 286-87 (2009)

(applying the "without limitation" provision of the statute).

McQueen argued that the letter was clear and unambiguous, not

subject to change, and affirmatively approved his proposed

development, thereby meeting the criteria set forth in Crucible

for determining when a zoning administrator's letter may

constitute a significant affirmative governmental act. See id.

at 160, 677 S.E.2d at 287-88. In further support of this

position, McQueen asserted that the letter represented a

"determination of legislative compliance," leaving only

ministerial approvals for his proposed development.

Alternatively, McQueen argued that the compliance letter

met the terms of the seventh governmental action subsequently

added to Code § 15.2-2307, and that this provision should be

applied retroactively for the circuit court to reach that

determination.

The County responded by arguing, inter alia, that

Thompson's compliance letter was not in the nature of a

legislative act, and did not constitute an unambiguous approval

of McQueen's proposed development. Rather, the County asserted

that it was simply a courtesy to McQueen to confirm that his

property qualified for a cluster subdivision as a permissive use

7 by-right under the CLO Ordinance's general standards, and

nothing more. Thus, the County contended, the letter did not

constitute a significant affirmative governmental act, thereby

negating McQueen's vesting claim.

Following an evidentiary hearing, the circuit court ruled

in favor of McQueen, finding that he established each of the

three elements required under Code § 15.2-2307 for a land use

right to become vested. As to the first statutory element, the

circuit court agreed with the parties that the issuance of

Thompson's compliance letter did not fall within any one of the

six significant affirmative governmental acts set forth in the

statute at that time. Nor did the circuit court apply the

seventh act retroactively, as urged by McQueen. Citing

Crucible, the circuit court indicated that its ruling on the

first statutory element was, instead, based on case law -

pursuant to the "without limitation" provision of the statute.

Code § 15.2-2307. The circuit court accordingly declared in its

final order that McQueen's "land use rights [to develop his

property as a cluster subdivision] have vested."

II. ANALYSIS

The sole issue raised by the County on appeal is whether

Thompson's compliance letter constituted a significant

affirmative governmental act for purposes of Code § 15.2-2307 – a

threshold determination in the circuit court's adjudication of

8 McQueen's claim of vested land use rights. Crucible, the County

argues, is closely analogous to the present case, and supports

its position that the circuit court erred by holding the

compliance letter satisfied this first element of the statute.

We agree with the County that this case is controlled by

Crucible. Similar to McQueen and his proposed cluster

subdivision, the plaintiff in Crucible sought confirmation

from the Stafford County zoning administrator that its

proposed security training facility met the definition of a

"school" under the local zoning ordinance in an A-1 zoning

district. If it met the definition, the facility could be

constructed "on a 'by right' basis, i.e., without additional

discretionary approval by the County." 278 Va. at 156, 677

S.E.2d at 285. Cf., e.g., Byrum v. Board of Supervisors, 217

Va. 37, 41-44, 225 S.E.2d 369, 372-34 (1976) (addressing

legislative discretion involved in issuing special use

permits).

After meeting with the zoning administrator, the plaintiff

in Crucible received a letter, titled "'Zoning Verification,'" in

which the zoning administrator stated that plaintiff's proposed

facility "'would be classified a "school" by definition in the

Stafford County Zoning Ordinance,' and that the '[v]erification

is valid as of [the date of the letter] and is subject to

change.'" 278 Va. at 156, 677 S.E.2d at 285. However, before

9 the plaintiff obtained approval of a site plan for the proposed

facility, the Stafford County Board of Supervisors adopted a

zoning ordinance that required a conditional use permit for

locating a school in an A-1 zoning district. Id.

Plaintiff filed a declaratory judgment action seeking a

declaration that it had a vested right, pursuant to Code § 15.2-

2307, to construct a school on its property "on a 'by right'

basis." Id. at 157, 677 S.E.2d at 285. The trial court entered

declaratory judgment in favor of the plaintiff on this theory

based in part on the court's determination that the zoning

verification letter constituted a significant affirmative

governmental act "substantially similar and equally serious" to

the six examples then listed in the Code section. Id. On

appeal, this Court disagreed and reversed the judgment of the

trial court. Id. at 161, 677 S.E.2d at 288.

The Court explained in Crucible that when the particular act

at issue, such as the verification letter, does not fall within

one of the enumerated acts in Code § 15.2-2307 "we rely on this

Court's case law to determine whether [the] particular act

constitutes a significant affirmative governmental act." Id. at

160, 677 S.E.2d at 287. The Court then explained that "[t]he

alleged significant affirmative governmental act should be

interpreted according to the plain meaning of the language used

in the act" and "the evidence to support the claim to [vested

10 land use] rights must be clear, express, and unambiguous." Id.

(citing Hale v. Board of Zoning Appeals, 277 Va. 250, 274, 673

S.E.2d 170, 182 (2009)). Evidence of "only a future expectation"

that the landowner will be allowed to develop his property in

accordance with a current zoning classification under the

ordinance is therefore insufficient to establish a vested

property right in the continuation of the property's existing

status. Id. (quoting Hale, 277 Va. at 271, 673 S.E.2d at 180).

Furthermore, "statements of the zoning board's general support of

the plan and informal assurances of future approval are not

enough to constitute a significant affirmative governmental act."

Id. (citing Board of Zoning Appeals v. CaseLin Sys., Inc., 256

Va. 206, 212-13, 501 S.E.2d 297, 401-02 (1998)).

Based on these principles, the Court concluded that the

statement of zoning classification contained in the zoning

administrator's verification letter to the plaintiff was not a

significant affirmative governmental act. Id. at 161, 677

S.E.2d at 288. The Court reasoned that, "[a]ccording to the

plain meaning" of the language in the verification letter, the

zoning administrator did not "affirmatively approve" the

plaintiff's project, and made "no commitment" to it. Id. at

160, 677 S.E.2d at 287. "The zoning administrator simply

answered the question concerning the classification of

[plaintiff's] project according to the Stafford County Zoning

11 Ordinance in place on the date the request was made," and added

that "the verification was subject to change." Id.

Like the "verification letter" for the proposed project

in Crucible, the "compliance letter" in this case did not

affirmatively approve McQueen's proposed development of a

cluster subdivision. Nor did it make any commitment to

McQueen regarding this project. Rather, the compliance letter

confirmed that McQueen's proposed development met the general

standards for a cluster subdivision. 5 By definition, such

confirmation was essentially limited under CLO Ordinance § 90-

332.6 to a determination of whether the proposal met the

requirements for minimum tract size and maximum number of

residential units per acre - a simple mathematical

calculation. Because McQueen's proposal complied with those

standards, Thompson advised McQueen in the compliance letter

that he was entitled to pursue his project as a matter of

right, i.e., without discretionary approval by the County.

5 Our analysis of the compliance letter is unaffected by the fact that McQueen was required under CLO Ordinance § 90-332.16 to meet with Thompson prior to preparation of the preliminary plat to review the requirements for a cluster subdivision, and to prepare a "property resource map" of his property (merely depicting the property in its undeveloped state), both of which occurred before the letter was issued. Neither the meeting nor McQueen's preparation of the map and presentation of it to Thompson directly resulted in anything that could be characterized as a significant affirmative governmental act vis- à-vis the compliance letter. Indeed, no specific action was required of Thompson under the ordinance in response to either the meeting or presentation of the map.

12 That, of course, was far short of the "clear, express, and

unambiguous" approval of, or commitment to, a specific plan of

development by McQueen as required for the creation of a

vested development right. 6 Crucible, 278 Va. at 160, 677

S.E.2d at 287.

Manifestly, McQueen's right to so pursue his project was

not dependent upon his receipt of the compliance letter from

Thompson. The CLO Ordinance did not require McQueen to seek

such confirmation, nor did it require Thompson to provide it.

As the County correctly contends, 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. 7

6 The first governmental approval required under the CLO Ordinance was an approval of the landowner's preliminary plat of a proposed cluster subdivision. CLO Ordinance § 90-332.16(B). With the filing of the preliminary plat, the landowner was, for the first time, required to account for the numerous specific standards for the project under the CLO Ordinance along with the County's subdivision regulations. McQueen did not file his preliminary plat with the County until several days after Thompson issued the compliance letter. Thus, the letter could not have been interpreted as some implied approval of the plat. Nor did Thompson make any mention of an earlier draft of the preliminary plat in her letter. 7 McQueen alternatively argues, as he did below, that the issuance of the letter would constitute the seventh significant affirmative governmental act added to Code § 15.2-2307 in 2010,

13 III. CONCLUSION

For these reasons, we conclude that the zoning

administrator's issuance of the confirmation letter was not a

significant affirmative governmental act. The circuit court

thus erred in holding that McQueen acquired a vested right under

Code § 15.2-2307 to develop his property as a cluster

subdivision. Accordingly, we will reverse the judgment of the

trial court, and enter final judgment for the County.

Reversed and final judgment.

which we should apply retroactively. Because the General Assembly expressed no intent that the statute be applied retroactively, we will not do so. Goyonaga v. Board of Zoning Appeals, 275 Va. 232, 241 n.4, 657 S.E.2d 153, 258 n.4 (2008); Adams v. Alliant Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 (2001).