Board of Supervisors v. McQueen

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).
14