City of Suffolk Ex Rel. Herbert v. Board of Zoning Appeals

580 S.E.2d 796, 266 Va. 137, 2003 Va. LEXIS 69
CourtSupreme Court of Virginia
DecidedJune 6, 2003
DocketRecord 021981
StatusPublished
Cited by15 cases

This text of 580 S.E.2d 796 (City of Suffolk Ex Rel. Herbert v. Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Suffolk Ex Rel. Herbert v. Board of Zoning Appeals, 580 S.E.2d 796, 266 Va. 137, 2003 Va. LEXIS 69 (Va. 2003).

Opinions

JUSTICE AGEE

delivered the opinion of the Court.

The City of Suffolk (“the City”) appeals the judgment of the Circuit Court of the City of Suffolk affirming the determination of the Board of Zoning Appeals for the City of Suffolk (“BZA”) that certain land use rights became vested with respect to a parcel of land owned by Etheridge Manor Corporation (“Etheridge”). For the reasons set forth below, we will affirm the trial court’s judgment.

I. FACTS AND PROCEEDINGS BELOW

In 1985, Etheridge purchased a tract of approximately 164 acres in the City of Suffolk (“the Property”). In conjunction with an adjoining landowner, Etheridge planned to develop the combined tracts of 310 acres as a planned unit development known as King’s [141]*141Landing. In June 1988, at the request of Etheridge and the adjoining landowner, the Suffolk City Council rezoned the 310 acres from “Rural Residential” to “Planned Development Housing” (“PD-H”) and approved the Master Land Use Plan Etheridge submitted for the development. The Master Land Use Plan reflected a mixed-use and mixed-density development including medium and high-density residential areas, as well as commercial parcels.

The adjoining landowner encountered financial difficulties, including foreclosure, which delayed a joint development of the project. Etheridge decided to proceed independently and engaged an engineering firm to review the development options for the Property in 1993.

In 1994, Etheridge requested that approximately 10 acres of the Property be rezoned from “PD-H” to “General Business.” At the same time, Etheridge submitted amendments to the 1988 Master Land Use Plan to change the proposed residential development areas from mixed density to low density for the remaining 154 acres of the Property. In August 1994, the Suffolk City Council approved the rezoning of the 10-acre parcel, reduced the density for the remaining 154 acres to four units per acre, and approved the Amended Master Land Use Plan.1

In 1995, Etheridge submitted a preliminary recreation plan and a traffic impact analysis based on a full residential development of the Property, which the City approved. In 1996, Etheridge submitted a preliminary subdivision plat for part of the remaining 154 acres of the Property (designated as “Planter’s Station at King’s Landing Section 1, 2 and 3” (“Planter’s Station”)).2 The Suffolk Planning Commission approved this preliminary plat in March 1996, and granted extensions of time for submission of the final Planter’s Station plat to April 1998. The extensions were requested to accommodate the engineering design for the entire Property relating to sewer, water, storm drainage, and related items since the Planter’s Station portion was part of an integrated infrastructure for the whole Property.

[142]*142In 1997, Etheridge deeded 1.1 acres of the Property, without compensation, to the Virginia Department of Transportation (“VDOT”) for road improvements adjacent to the Property. In April, 1998, Etheridge filed a final plat for Planter’s Station, but no action had been taken on it before enactment by the City of the Uniform Development Ordinance (“UDO”) on September 1, 1999.

The City’s enactment of the UDO changed the zoning classification of land throughout the city of Suffolk. The UDO effectively rezoned all of the Property, other than the 10-acre commercial section, from “PD-H” to “Commerce Park” and “Office-Institutional.” After the City adopted the UDO, Etheridge requested a determination by the City’s Zoning Administrator that it had vested rights in the PD-H zoning for the 154 acres. The Zoning Administrator determined that Etheridge had vested rights in the Planter’s Station section, but not in the remaining portion of the 154 acres (“the Remainder”), which was the bulk of the Property. In effect, this determination meant that Etheridge could not develop the Remainder as residential property, but only as an office or commerce park, despite its contiguous location to Planter’s Station.

Etheridge appealed the Zoning Administrator’s decision to the BZA, which reversed the Zoning Administrator’s determination and held that Etheridge had vested rights in the PD-H zoning designation for the Remainder. The trial court granted the City a writ of certiorari pursuant to Code § 15.2-2314 to review the BZA decision.

The trial court affirmed the BZA’s decision finding that the 1988 rezoning was a “significant affirmative governmental act” under Code § 15.2-2307 upon which Etheridge reasonably relied in good faith. The trial court further found that Etheridge had expended substantial funds in diligent pursuit of the project and that those expenditures were for development of the entire Property. This appeal by the City follows.

II. STANDARD OF REVIEW

The decision of a board of zoning appeals is presumed to be correct on appeal to a circuit court; the appealing party bears the burden of showing that the board applied erroneous principles of law or that its decision was plainly wrong and in violation of the purpose and intent of the zoning ordinance. Bd. of Zoning App. v. Bond, 225 Va. 177, 179-90, 300 S.E.2d 781, 782 (1983); Allegheny Enterprises v. Covington, 217 Va. 64, 67, 225 S.E.2d 383, 385 (1976). A circuit court decision [143]*143affirming a board of zoning appeals determination is also accorded this presumption of correctness on appeal to this Court. Natrella v. Board of Zoning Appeals, 231 Va. 451, 456, 345 S.E.2d 295, 299 (1986).

Masterson v. Bd. of Zoning App., 233 Va. 37, 44, 353 S.E.2d 727, 732-33 (1987).

Our standard of appellate review is well established. A circuit court’s judgment is presumed to be correct and we will not set that judgment aside unless it appears from the record that the judgment is plainly wrong or unsupported by the evidence. Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992); Code § 8.01-680.

III. ANALYSIS

Prior to 1998, this Court’s decisions had determined when landowners acquired vested rights in uses of their property where the zoning status of that property was changed to prohibit a previously permitted use.

Privately held land is subject to applicable local zoning ordinances whether enacted before or after the property was acquired. Generally, landowners have no property right in anticipated uses of their land since they have no vested property right in the continuation of the land’s existing zoning status. However, in limited circumstances, private landowners may acquire a vested right in planned uses of their land that may not be prohibited or reduced by subsequent zoning legislation.

Board of Zoning Appeals v. CaseLin Systems, Inc., 256 Va. 206, 210, 501 S.E.2d 397

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bragg Hill Corp. v. City of Fredericksburg
831 S.E.2d 483 (Supreme Court of Virginia, 2019)
Town of Leesburg v. Long Lane Associates
726 S.E.2d 27 (Supreme Court of Virginia, 2012)
Sup'rs of Stafford County v. Crucible, Inc.
677 S.E.2d 283 (Supreme Court of Virginia, 2009)
Hale v. BOARD OF ZONING APPEALS, TOWN OF BLACKSBURG
673 S.E.2d 170 (Supreme Court of Virginia, 2009)
Goyonaga v. Board of Zoning Appeals
657 S.E.2d 153 (Supreme Court of Virginia, 2008)
Board of Supervisors v. Greengael, L.L.C.
626 S.E.2d 357 (Supreme Court of Virginia, 2006)
Board of Supervisors v. BOARD OF ZONING
626 S.E.2d 374 (Supreme Court of Virginia, 2006)
Wilson v. Henry County Zoning Appeals Board
69 Va. Cir. 255 (Henry County Circuit Court, 2005)
Lamar Co., LLC v. Board of Zoning Appeals
620 S.E.2d 753 (Supreme Court of Virginia, 2005)
Town of Madison v. Zoning Appeals Board
65 Va. Cir. 433 (Madison County Circuit Court, 2004)
Chappell v. Zoning Appeals Board
65 Va. Cir. 142 (Fairfax County Circuit Court, 2004)
Curzio Construction, Inc. v. Zoning Appeals Board
63 Va. Cir. 416 (Warren County Circuit Court, 2003)
In re Zoning Ordinance Amendments
67 Va. Cir. 462 (Loudoun County Circuit Court, 2003)
City of Suffolk Ex Rel. Herbert v. Board of Zoning Appeals
580 S.E.2d 796 (Supreme Court of Virginia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
580 S.E.2d 796, 266 Va. 137, 2003 Va. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-suffolk-ex-rel-herbert-v-board-of-zoning-appeals-va-2003.