Virginia Code § 15.2-2280 et seq., grants localities the power to enact zoning ordinances, which can include provisions related to a number of zoning matters, such as rezoning properties, granting special exceptions or variances, and administering and enforcing zoning matters. Final zoning decisions are typically made by either the local governing body or a board of zoning appeals, after a public hearing at which concerned citizens can make their positions known. However, neither the local governing body nor board of zoning appeals has the final say when it comes to zoning matters. Rather, under Virginia law, any person aggrieved by a zoning decision can appeal the decision to the circuit court of their locality.
What Is Zoning?
Simply put, zoning ordinances regulate property in a given locality. Localities enact zoning ordinances for several reasons. Under Virginia law, their key purposes include promoting the health, safety or general welfare of the public, planning for the future development of communities, and the preservation of agricultural and forestal land.
Localities “zone” property by dividing their respective territory into districts and setting forth regulations applying in each district. Though districts differ between localities, examples of common zoning districts include “residential” and “commercial.” Districts allow localities to set up different rules for different parts of the city, town, or county.
For example, while it may be acceptable for developers to build very tall buildings in a “commercial” district, most people do not want to live in a neighborhood full of tall buildings that can eclipse scenic views or block sunlight; thus, “residential” and “commercial” zoning districts typically have different building height limits. This is just one small example of the differences between zoning districts.
What Are Zoning Decisions?
Zoning disputes can occur in a variety of contexts, such as opposing a proposed zoning ordinance, challenging the authority of the locality to enact a zoning ordinance, or asking to be excluded from a zoning ordinance that is otherwise valid, among other things.
At the behest of a developer, landowner, or on its own, the governing body of a locality may propose to change the classifications on the zoning map. For example, a developer may want to build houses on land zoned for agricultural purposes; the typical “agricultural” zoning classification does not allow for such activities.
Localities have the power to amend their zoning ordinances under Virginia Code Section 15.2-2286. This includes “the amendment of the regulations or district maps from time to time . . . [w]henever the public necessity, convenience, general welfare, or good zoning practice requires.”
However, under Virginia law, a locality cannot simply rezone property on a whim. Rather, it must comply with strict notice and hearing requirements under Virginia Code Sections 15.2-2204 and 15.2‑2206. Briefly, these requirements include providing written notice to owners of the property to be affected (as well as adjacent owners) and providing a hearing before the local governing body, thereby allowing the citizens of the locality to speak their mind.
Sometimes, a zoning ordinance will only allow for a specific use after approval by the local governing body. These are called “special exceptions” or “special use permits.” In other words, a zoning ordinance may provide some uses by right and others by exception or permit; the latter are special exceptions. As the Supreme Court of Virginia has explained in Board of Supervisors v. Southland Corporation, the purpose of requiring a special exception is “to insure compliance with standards designed to protect neighboring properties and the public.”
As with rezoning, applications for special exceptions can be made to the local governing body or a zoning administrator, whose decisions can ultimately be appealed. Furthermore, as with rezoning, special exceptions cannot be granted unless the locality complies with strict notice and hearing requirements under Virginia Code Section 15.2‑2204.
Variances are similar to special exceptions; the key difference between them is that special exceptions are allowed under the zoning ordinance so long as the local governing body approves, whereas variances authorize a use otherwise prohibited by the zoning ordinance. In other words, variances allow a property owner to ask the locality not to change the zoning ordinance itself, but allow a use that normally would not be allowed under the zoning ordinance.
One might wonder, if a person can apply for a variance from a zoning ordinance, why try to amend a zoning ordinance altogether? The answer is that variances are limited in scope; under Virginia law, a variance must be a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building or structure, and must not be “contrary to the purpose of the ordinance. As with rezoning, applications for variances can be made to the local governing body or (more often) to a zoning administrator, whose decisions can ultimately be appealed. Furthermore, as with rezoning, variances cannot be granted unless the locality complies with strict notice and hearing requirements under Virginia Code Section 15.2-2204.
Appealing a Zoning Decision
Sometimes, despite the best efforts of those opposing a zoning matter, such as a rezoning or granting of a special exception, the local governing body or board of zoning appeals cannot be swayed. Virginia law, however, gives those aggrieved by such decisions the opportunity to hear their claims in court. The remainder of this article discusses who can make such appeals, how, and under what circumstances the court will overturn a zoning decision.
Who Can Appeal?
The right to appeal a zoning decision of a local governing body (typically a city council or county board of supervisors) comes from Virginia Code § 15.2-2285(f), which provides:
Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty days of the decision with the circuit court having jurisdiction of the land affected by the decision. However, nothing in this subsection shall be construed to create any new right to contest the action of a local governing body.
On the other hand, the right to appeal a zoning decision of a board of zoning appeals comes from Virginia Code § 15.2-2314, which provides in pertinent part:
Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit court for the county or city a petition that shall be styled “In Re: date Decision of a board of zoning appeals of [locality name]” specifying the grounds on which aggrieved within 30 days after the final decision of the board.
At first glance, it may appear that different standards apply to different appeals. The statute pertaining to appeals from a board of zoning appeals requires the appellant to be “aggrieved,” whereas the statute pertaining to appeals from the local governing body uses no such language. However, the Supreme Court of Virginia has held in Friends of the Friends of the Rappahannock v. Caroline County Board of Supervisors that the same standard applies to actions originating from land use decisions made by local governing bodies.
Thus, only “aggrieved” persons may appeal a zoning decision. But what does that mean? The answer, unfortunately, is not always clear. If the person challenging the zoning decision owns property that is the subject of the zoning action, then they are certainly aggrieved. But oftentimes, a person may be affected by a zoning decision despite not owning the property subject to the zoning action—for example, the residents of a neighborhood surrounding agricultural property that is to be rezoned for commercial development.
Courts in Virginia use a two-step test to determine whether a person is “aggrieved” and therefore has “standing”—a legal term indicating when someone has the right to sue. First, the person challenging the zoning decision (the complainant) must own or occupy real property in close proximity to the property subject to the zoning decision. Second, as articulated by the Supreme Court of Virginia in the Rappahannock case, the complainant must allege facts demonstrating a particularized harm to some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally.
The first step is relatively simple and typically not in dispute. In the Rappahannock case, the Supreme Court of Virginia suggested living within 2,000 feet of the subject property is sufficiently proximate.
The second step is more complicated. It is not enough that the zoning decision is bad for the community in general; rather, the complainant must allege some harm particular to them. While, in the Rappahannock case, the complainants did not allege sufficient particularize harm such that they could maintain their lawsuit against the board of supervisors, the Court did note a prior case in which the complainants were more successful: Riverview Farm Associates Virginia General Partnership v. Board of Supervisors of Charles County. In that case, the complainants could proceed because they were particularly harmed by the rezoning decision in that they would personally experience greater noise and disturbances, and that, as a result of the rezoning, liquid leakage or garbage juice was draining into the river upon which they lived.
The key takeaway is this: only those who have suffered or will suffer injury to their person or property that is unique to them can challenge a zoning decision. In other words, someone who disagrees with the decision of a local governing body on a zoning matter will not necessarily be able to appeal to a court. However, each zoning case stands on its own, and whether a person has legal standing to appeal a zoning decision depends heavily on the unique circumstances of each case.
How Are Appeals Made?
Whether a zoning decision is being appealed from the local governing body or a board of zoning appeals, a petition must be filed in the circuit court of the same locality within 30 days. This is a relatively short timeframe; thus, it is important that those challenging (or supporting) a zoning matter be prepared and have a plan in place before the hearing at which the zoning decision is made.
With respect to appeals from the local governing body, the Virginia Code does not specify how the appeal is to be made. However, the typical method of doing so is filing a Petition for a Declaratory Judgment. Indeed, under Virginia Code § 8.01-184, circuit courts in Virginia have the power to make binding adjudications of right in controversies involving municipal ordinances and other governmental regulations. In the zoning context, a Declaratory Judgment is a petition asking the court to declare the action of the local governing body void and of no effect, essentially overturning it. Because this is, for the most part, no different than any other lawsuit, it is advisable that those seeking to appeal a zoning decision consult with attorneys experienced in zoning law.
On the other hand, Virginia Code § 15.2-2314 directly specifies how appeals from a board of zoning appeals are to be made. First, the challenger(s) may file a petition styled In Re: date Decision of the Board of Zoning Appeals of [locality name]. Unlike an appeal from the local governing body, the board of zoning appeals is not the defendant; rather, the local governing body, the landowner, and the applicant before the board of zoning appeals are the necessary parties to the lawsuit. Furthermore, anyone who is aggrieved by the board of zoning appeals’ decision can intervene, or in other words, become a party to the lawsuit. As with a Declaratory Judgment action, this is, for the most part, no different than any other lawsuit, and it is therefore advisable that those seeking to appeal a zoning decision of a board of zoning appeals consult with attorneys experienced in zoning law
When Will the Court Overturn the Zoning Ordinance?
A court will typically only declare a zoning decision void and of no effect in limited circumstances. That is because zoning decisions enjoy a presumption of legislative validity—in other words, the court will assume from the start that the zoning decision should be upheld, and it will be the burden of the challenger to prove otherwise.
The presumption of validity means that the court will only overturn the zoning decision if it was unlawful, unreasonable, or arbitrary and capricious. This standard comes from the United States Supreme Court’s decision in Euclid v. Amber Realty Company, in which the Court articulated the test to be applied to an act of local government: “whether or not that ordinance is a reasonable and real exercise of the police power,” in which case it is valid, “or an unreasonable and arbitrary exercise of the powers of local self-government,” in which case it is invalid. Courts in Virginia use essentially the same test.
That begs the question, when is a zoning decision unreasonable and/or arbitrary and capricious? Under Virginia law, the court will first require the complainant to provide some evidence that the zoning decision was unreasonable. If this can be done, then the locality will no longer enjoy the presumption that its zoning decision was reasonable; rather, the burden will shift to the locality to show evidence of reasonableness.
At this point, the court will consider whether the zoning decision is fairly debatable—in other words, could two reasonable people come to different conclusions when presented with all the facts relevant to the zoning decision? There are several grounds a challenger could use to argue that a zoning decision should be overturned.
First, the challenger could argue that the zoning decision does not serve the purpose of zoning, which is the protection of the public health, safety, morals, and general welfare.
Second, the challenger could argue that the zoning decision constitutes “spot zoning.” This term refers to an illegal, improper zoning ordinance designed solely to serve the private interests of one or more landowners, but not the community as a whole.
Third, the challenger could make a procedural argument. Several circuit courts in Virginia have held that a zoning ordinance that does not meet procedural requirements is void and of no effect. This applies to both state and local requirements; though a local governing body can amend its own ordinances, it is not at liberty to disregard then.
These categories of challenges to zoning decisions are by no means exclusive. But, whatever ground such a challenge is based on, it is important to keep in mind that courts are often hesitant to second‑guess localities, and it will take strong evidence and a thorough understanding of zoning law to overcome the high hurdle of a zoning decision appeal.
Fishwick & Associates: Fighting for Individuals Involved in Zoning Disputes
At Fishwick & Associates, we have advised and represented numerous individuals seeking to challenge local zoning ordinances. If you are being adversely affected by a local zoning ordinance or believe a local government has exceeded its zoning powers under the law, Fishwick & Associates can help determine the merits of your case and what actions to take. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.
Va. Code § 15.2-2280.
Va. Code § 15.2-2286.
Va. Code § 15.2-2204.
Va. Code § 15.2-2206.
Va. Code § 15.2-2285.
Va. Code § 15.2-2314.
Va. Code § 8.01-184.
Bd. of Supervisors v. Southland Corp., 224 Va. 514, 521, 297 S.E.2d 718, 722 (1982).
Friends of the Rappahannock v. Caroline Cty. Bd. of Supervisors, 286 Va. 38, 743 S.E.2d 132 (2013).
Riverview Farm Assocs. Va. Gen. P’ship v. Bd. of Supervisors of Charles County, 259 Va. 419, 528 S.E.2d 99 (2000).
Bd. of Supervisors v. Rowe, 216 Va. 128, 133, 216 S.E.2d 199, 205 (1975).
Bd. of Supervisors v. Fralin & Waldron, Inc., 222 Va. 218, 226, 278 S.E.2d 859, 863-64 (1981).
Town of Madison v. Ford, 40 Va. Cir. 423, 424 (Madison County 1996).
Northampton Cty. Bd. of Zoning Appeals v. E. Shore Dev. Corp., 277 Va. 198, 203, 671 S.E.2d 160, 163 (2009).
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
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