Imagine this situation: you want to build a two-story garage next to your home, so you hire an architect
to design the garage, then you take the plans to your local zoning administrator to ensure that your garage complies with all of your local zoning ordinances.
You complete the application, attach it to your plans and submit it for approval. Shortly thereafter, your local zoning administrator visits your home with your application in hand and looks over the proposed site for your new garage. Then, a week later, you receive your application back, noting that your local zoning administrator has marked it “approved.” Satisfied that you now have the green light to proceed, you spend $27,000 to build your new garage and begin to enjoy it.
Nearly a year later, however, your locality’s new zoning administrator notifies you that his predecessor erroneously approved your application, that your garage actually is taller than allowed by the locality’s existing zoning ordinances and that you must spend more money to fix the problem. Certain that your locality cannot treat you this way, you refuse to spend more money tearing off the second story of your new garage. You then receive in the mail a written notice of a zoning violation. You appeal the violation to your locality’s board of zoning appeals (BZA), arguing that your locality surely cannot approve your garage one year and then tell you to tear it down the next, but the BZA denies your appeal.
Although common sense tells you this situation couldn’t happen, it actually happened to homeowners in Richmond County in 2014, and is the subject of a recent case before the Virginia Supreme Court. In that case, the homeowners appealed the BZA’s ruling to the local circuit court, arguing that its “rights [had] vested and the permits for erection of the [two-story garage] are not subject to revocation or reversal.”
Fortunately for all property owners in Virginia, the circuit court agreed with the homeowners and reversed the BZA decision. After the BZA appealed, the Virginia Supreme Court affirmed the circuit court’s ruling in favor of the homeowners. See Board of Supervisors of Richmond County v. Rhoads, Record No. 161209 (Aug. 31, 2017).
The case turned on a statute enacted in 1995. Prior to that year, Virginia placed on property owners “the sole responsibility for the consequences of a government’s zoning mistake.” For example, the builders of the LaVogue store on Warwick Boulevard lost its appeal in 1965 of a decree to tear down part of a canopy covering a walkway leading to the newly constructed store because it violated a zoning ordinance, even though the canopy had appeared on construction plans submitted in support of the building permit that had been issued. In its explanation, the Supreme Court made clear that “an erroneous construction [of a valid zoning ordinance] by those charged with its administration cannot be permitted to override the clear mandates of [that zoning ordinance].” Segaloff v. City of Newport News, 209 Va. 259 (1968).
In the recent case, the Supreme Court noted that, in 1995, the General Assembly had shifted the consequences of a zoning official’s mistake from property owners to the locality when it enacted the language that now appears in Virginia Code § 15.2-2311(C):
In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by any zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud.
The court described this language as a “‘vested rights’ provision…intended to eliminate the hardship property owners have suffered when they rely to their detriment upon erroneous or void zoning decisions.” Finding that the timeline of events in the Rhoads case satisfied the provisions of the statute, the Supreme Court concluded that the property owners’ rights in constructing a two-story garage had vested and were not subject to later alteration by a new zoning administrator or by the County’s BZA or Board of Supervisors.
All Virginia property owners should be grateful for the reminder and clarification of the law’s protection from damage caused by government zoning mistakes, especially because the pursuit of the appeal by the Rhoads family most certainly was an expensive and time-consuming battle.
Frank A. Edgar Jr. is an attorney with the law firm of Goldstein, Edgar & Reagan in Newport News. He can be reached at firstname.lastname@example.org or 757-873-8773.