Some Supervisors May Hate This
By Charles Houston
Abridged conversation:
Citizens: “We must reduce housing density in the county.”
Big easement donor and a developer: “That’s downzoning and is illegal. If you enact it, we won’t do anything more in Loudoun.”
This person is wrong, and selfish.
Abridged conversation:
Citizens: “We must reduce housing density in western Loudoun.”
Department of Planning and Zoning, “That’s downzoning and is illegal.”
The Department is wrong.
Abridged conversation:
Citizens: “We must reduce housing density in western Loudoun. Every house in the west costs the County $106,600 of upfront costs!”
Supervisor: “Big landowners will tell you that reducing density would be downzoning. That’s illegal and the County Attorney’s office tells me so.”
That Supervisor is mistaken.
Our Foes are Consistent. Consistently Wrong
A recently retired attorney-friend offered to research the issue of downzoning vs. property rights. I took him up on his offer.
He has no skin in the conservation game; he’s truly neutral. He’s also bright and diligent, and very credible. Lawyers in general can argue either side of a coin, so perhaps another attorney might find some counter-arguments to my friend’s findings. Those casuists are probably bought and paid for, so ignore them.
Here’s what my attorney-friend reports:
Local authorities have broad authority to change zoning. This includes zoning that may reduce, limit or prohibit a landowner’s intended use of the property. (Supreme Court of Virginia, Board of Supervisors v. Carper, 1959)
Landowners aren’t forever entitled to their current zoning status. The county is not obligated to grandfather a property. If someone who buys a property for a certain use under current zoning, the county may change zoning to restrict that use, even if it diminishes the property’s value. (Snow v. Board of Zoning Appeals, 1994)
An Acronym That Sounds Like a Video Game
A landowner may have a vested right when there is a “Significant Affirmative Governmental Act,” with the acronym “SAGA;” he relies on that SAGA in good faith; and he has incurred substantial expenses. All three criteria must be met. The County’s acceptance of a zoning application is insufficient. (Board of Supervisors v. Crucible, 2009.)
State code gives Zoning Administrators the authority to make determinations on vesting. (Code section 15.2-2286) However, I have heard anecdotes that Loudoun’s bureaucrats will accept almost anything and deem the applicant vested. I really hope this is untrue. But…
There are some actions – SAGAs – that lead to vesting: Approval of a rezoning for a certain use or density. Granting of a Special Exception. Approval by the Board of Zoning Appeals. Formal approval of a valid subdivision plat. Unambiguous and express approval by a locality. Approval of proffers. There is some imprecision as to what these mean in practice. Note that Virginia’s Supreme Court has held that letters confirming a use do not count as SAGAs. In 2014 that court ruled that a “zoning compliance letter” by itself did not qualify. (Board of Supervisors v. McQueen, 2014.)
Our new Zoning Ordinance includes a section that makes grandfathering easier. That was a special favor to business interests and is another sad story.
The Courts Speak
Virginia courts may assess whether a downzoning is based on “legitimate and rational reasons.” These include social and economic policy reasons, including quality of life, environmental concerns, and inadequate infrastructure.
Since County Staff has just calculated that each new house in Western Loudoun has an immediate negative impact to the County of $106,600, so the economic policy test is easily met.
Piecemeal zoning may be capricious and even illegal. This is what started the FBI investigation of a terribly controversial Board in the late 1990s.
Virginia courts may deem downzoning to be a taking, but only if it deprives the owner of all economically viable uses of the property, not merely that it might diminish a property’s potential value.
Loudoun Has Downzoned Before
I really appreciate my friend’s work; it bathes the downzoning question in proper light. I’m not going to impose on him further, but there is concrete local precedence that downzoning can be legal. Western Loudoun was downzoned in 2003. Multiple lawsuits ensued – no surprise there. The court eventually held that the 2003 downzoning was illegal because the County did not follow proper procedures as to public notice and hearings. It did not suggest that the downzoning was somehow impermissible. The County then repeated the process, following all procedures, and the downzoning was approved in 2006. That downzoning still stands.
Any new downzoning will surely become a political hot potato. It’s easy for the politicians to avoid conflict by saying that the County’s Attorney’s office warns of the inevitable lawsuits that would follow.
The Supervisors should not fear lawsuits over modernizing zoning. Defending County policy, in court when necessary, is just part of the administrative process of government. After all, the County has a $5.2 billion annual budget which can easily absorb some legal fees. The County would prevail and the citizens would benefit.
Charles Houston lives on a small horse farm outside Paeonian Springs. His career was developing large office buildings throughout the South. His firm used two law firms of national prominence, whom they directed “Don’t tell us what we can’t do. Find a way that lets us do it.”
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