Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan
and Powell, JJ., and Russell, S.J.
TOWN OF LEESBURG, ET AL.
v. Record No. 111658 OPINION BY
JUSTICE S. BERNARD GOODWYN
LONG LANE ASSOCIATES June 7, 2012
LIMITED PARTNERSHIP
CORNERSTONE CHAPEL
v. Record No. 111662
LONG LANE ASSOCIATES
LIMITED PARTNERSHIP
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
J. Howe Brown, Judge
In this appeal, we consider whether the circuit court
erred in finding that a locality needs the consent of a
neighboring property owner to rezone a parcel that was
originally part of an undivided property, to which certain
proffers applied. We also consider whether a landowner can
acquire a vested right in a road shown on a town plan or in the
zoning classification of neighboring property.
Background
In an action filed in the Circuit Court of Loudoun County,
Long Lane Associates Limited Partnership (Long Lane) challenged
ordinances adopted by the town council of the Town of Leesburg
(the Town) concerning property owned by an adjoining landowner.
The challenged ordinances rezoned property owned by Cornerstone
Chapel (Cornerstone), amended the Town Plan to remove a portion
of a public road (Tolbert Lane), which was to cross
Cornerstone’s property, and approved a special exception to
permit Cornerstone to operate a day care center on its
property.
Long Lane and Cornerstone own adjacent properties
subdivided from a parcel formerly owned by High Point
Associates (High Point). Prior to subdivision, High Point
proffered, and the Town accepted, conditions on the entire
parcel. The circuit court ruled that the Town lacked authority
to approve Cornerstone’s request to rezone its property or
amend its zoning conditions without Long Lane’s consent because
Long Lane had a vested right in the completion of Tolbert Lane
and the development set forth in the proffered conditions. The
Town and Cornerstone appeal.
Facts
In 1987, High Point applied to the Town for a zoning
district map amendment to rezone 38.37 acres of land. High
Point's rezoning request proceeded through the planning
commission to the town council. High Point requested the
property be rezoned to Town PEC (planned employment center) and
added eleven enumerated proffers to its request (the ZM-98
proffers).
In 1988, the town council adopted an ordinance (“the High
Point Rezoning Ordinance”) rezoning High Point's property to
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PEC and amended the Town's zoning district map accordingly.
The rezoning ordinance adopted by the Town specifically stated
that the rezoning was subject to the eleven enumerated
conditions that High Point proffered in writing in accordance
with former Code § 15-1.491(a) (now Code § 15.2-2303(A)).
The Town Plan included a cut-through roadway across the
38.37-acre property, Tolbert Lane, which, when completed, would
connect Battlefield Parkway with Sycolin Road. One of the ZM-
98 proffers required the applicant to "construct [and dedicate
to the Town] the on-site streets, acceleration and deceleration
lanes, and necessary turning lanes designed on" the rezoning
plan, as subdivided sections of the property were approved for
development.
In 1992, Long Lane purchased a 5.3-acre parcel subdivided
from the 38.37-acre parcel owned by High Point. Long Lane
built a commercial building on its property, which it leased to
C&P Telephone Company (now Verizon).
To provide access to its property, Long Lane constructed
an extension of Tolbert Lane. George Shute, Jr., a principal
of Long Lane, testified that in extending Tolbert Lane across
its property, Long Lane built the extension longer and wider
than necessary to maintain ingress and egress to its property,
in reliance on the dimensions required by the ZM-98 proffers.
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After Long Lane purchased its property, the American Red
Cross and Cornerstone purchased the remaining parcels
subdivided from the High Point property. Cornerstone’s parcel
is 28.32 acres. Since the 1988 rezoning, the only building or
development on the original 38.37-acre parcel has been on Long
Lane’s property.
In 2008, Cornerstone filed three applications to amend the
zoning and conditions affecting its property in order to
construct a church on its land. First, Cornerstone requested
an amendment of the Town Plan to remove a proposed section of
Tolbert Lane that was located on Cornerstone's property and had
not yet been constructed. Second, Cornerstone requested a
change in the zoning district from PEC to B-3 community retail,
which allows a church as a permitted use. Third, Cornerstone
requested a special exception to allow it to operate a daycare
center on the church premises.
When considering the request to amend the Town Plan, the
Town noted that its transportation needs had changed
substantially between 1988, when the ZM-98 proffers were
enacted, and 2008, when Cornerstone filed its application to
amend the Town Plan. Originally, the Town intended Tolbert
Lane to be substantially used as a cut-through to connect
Battlefield Parkway with Sycolin Road. However, as other roads
in the Town developed, Tolbert Lane evolved into a local
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street, serving as an access street for the parcels in the
original High Point 38.37 acres. As the Town no longer
considered completion of Tolbert Lane necessary, it adopted
Cornerstone's requested ordinance removing from the Town Plan
the proposed portion of Tolbert Lane that was to cross
Cornerstone's property. This resulted in Tolbert Lane ending
at the cul-de-sac that Long Lane had constructed and dedicated
to the Town.
The town council also adopted an ordinance approving the
rezoning of Cornerstone's property from PEC to B-3 community
retail. The ordinance amended the ZM-98 conditions affecting
Cornerstone's property by removing them and instituting new
conditions that Cornerstone had proffered as part of its
rezoning application. Additionally, the town council approved
Cornerstone's special exception application to operate a
daycare center.
Shute and his attorney appeared at the public hearings
before the planning commission and the town council and
objected to Cornerstone's applications. Shute argued that the
Town could not amend the application of the conditions required
by the High Point Rezoning Ordinance without the consent of all
owners of property originally included in the rezoning. Long
Lane did not consent to the Cornerstone rezoning and proffer
amendment because it did not want to lose the compatible zoning
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that surrounded its property and the opportunity to have a
public through-road.
Analysis
The circuit court declared Long Lane to have “a vested
right to the completion of Tolbert Lane and the development set
forth in the ZM-98 proffers approved by Town Ordinance . . . .”
It ruled that the Town’s approval of Cornerstone’s request for
rezoning was void and of no effect because it violated Long
Lane’s vested rights under the High Point Rezoning Ordinance
and that the rezoning as well as the amendment to the Town Plan
and the granting of the special use permit were thus “illegal,
void and of no effect.” We disagree.
Code § 15.2-2307, the vested rights statute, provides:
Nothing in this article shall be construed to
authorize the impairment of any vested right.
Without limiting the time when rights might otherwise
vest, a landowner's rights shall be deemed vested in
a land use and such vesting shall not be affected by
a subsequent amendment to a zoning ordinance when the
landowner (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.
For purposes of this section and without
limitation, the following are deemed to be
significant affirmative governmental acts allowing
development of a specific project: (i) the governing
body has accepted proffers or proffered conditions
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which specify use related to a zoning amendment
. . . .
The purpose of Code § 15.2-2307 is to provide "for the vesting
of a right to a permissible use of property against any future
attempt to make the use impermissible by amendment of the
zoning ordinance . . . ." Goyonaga v. Board of Zoning Appeals,
275 Va. 232, 244, 657 S.E.2d 153, 160 (2008) (emphasis in
original).
The Town approved the rezoning of the High Point property
conditioned upon the ZM-98 proffers and specified the land use
relating to the zoning amendment. The Town's approval of the
proffers was a significant affirmative governmental act
allowing development of the specific project provided for in
the proffers. As a subsequent owner of a subdivided parcel of
the property governed by the ZM-98 proffers, Long Lane was a
beneficiary of the significant affirmative governmental act.
Pursuant to Code § 15.2-2307, Long Lane has a vested right in
the land use allowed by the High Point Rezoning Ordinance.
However, Long Lane claims not just a vested right
concerning its own property, but also a vested right with
respect to the zoning classification of property now owned by
the Red Cross and Cornerstone. Specifically, Long Lane argues
that it has a vested right not only in the land use specified
by the previously passed zoning ordinance, but also in the
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“development set forth in the ZM-98 proffer” approved by the
Town that would result in a road to be built in the future, and
in the compatibility of buildings that may be built in the
future on adjoining property. Thus, Long Lane claims a vested
right in the land use of property it does not own.
Whether a landowner may acquire a vested right in the
zoning classification or use of neighboring property or in a
road shown on a town plan is a question of first impression for
this Court. This Court's case law addressing vested rights in
future expectations or anticipated uses is instructive.
It is well established that a landowner has a right to
continue in an existing use, even after the governing body
changes the zoning classification, causing the use to become
nonconforming. Hale v. Board of Zoning Appeals, 277 Va. 250,
271, 673 S.E.2d 170, 180 (2009). Also, “ ‘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.' " Id. at 271, 673
S.E.2d at 180 (quoting City of Suffolk v. Board of Zoning
Appeals, 266 Va. 137, 143, 580 S.E.2d 796, 798 (2003))
(emphasis added); see Code § 15.2-2307.
In contrast, "when a landowner has only a future
expectation that he will be allowed to develop his property in
accord with its current classification under the local zoning
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ordinance, there is 'no vested property right in the
continuation of the land's existing zoning status.' " Id.
(quoting Board of Zoning Appeals v. Caselin Sys., 256 Va. 206,
210, 501 S.E.2d 397, 400 (1998)); see also City of Suffolk, 266
Va. at 143, 580 S.E.2d at 798 ("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.") (emphasis added). Cf. Code § 15.2-
2307. " '[T]he mere reliance on a particular zoning
classification . . . creates no vested right in the property
owner.' " Hale, 277 Va. at 272, 673 S.E.2d at 181 (quoting
City of Suffolk, 266 Va. at 145, 580 S.E.2d at 799).
Long Lane claims it has a vested right in the ZM-98
proffers pursuant to Code § 15.2-2307. One cannot, however,
acquire a vested right in a proffer. A landowner acquires a
vested right to a land use that is the subject of a significant
affirmative governmental act. Code § 15.2-2307. At best, Long
Lane had a future expectation that pursuant to the High Point
Rezoning Ordinance a road would be built as the surrounding
property was developed, and that the buildings built on
adjoining property would be compatible. Future expectations
concerning zoning do not create vested property rights. City
of Suffolk, 266 Va. at 143, 580 S.E.2d at 798.
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The existence of vested property rights does not prohibit
rezoning. Vested rights only protect the landowner's right to
planned uses of his or her land which may not be prohibited or
reduced by subsequent zoning. As a result, although Long Lane
is protected from future changes regarding the use of its own
property, it has no vested right as to its expectation that the
neighboring properties would continue to develop in accordance
with the zoning they had at the time Long Lane purchased its
property and developed it in accordance with the ZM-98
proffers.
Further, Code § 15.2-2307 and relevant cases indicate that
a landowner may only acquire a vested right as to use of his
own property. Code § 15.2-2307 explicitly refers to the
landowner subject to the zoning change, suggesting the vested
right only applies to a particular landowner, as opposed to the
aggregate of the property subject to the original significant
affirmative governmental act. Similarly, this Court's cases
interpreting Code § 15.2-2307 expressly refer to the
landowner's property, as opposed to neighboring property owned
by a different entity. See, e.g., Town of Vienna Council v.
Kohler, 218 Va. 966, 976, 244 S.E.2d 542, 547-48 (1978) ("We
observe that while the views of persons owning neighboring
property should be considered, property owners have no vested
right to continuity of zoning of the general area in which they
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reside, and the mere purchase of land does not create a right
to rely on existing zoning.") (emphasis in original). The Code
and this Court's case law do not support the conclusion that a
landowner may have vested rights in the zoning classification
or land uses of his or her neighbor, even where the property
was subdivided from a parcel which was rezoned subject to
proffered conditions.
Long Lane also contends that the Town acted in
contravention of Code § 15.2-2303(A) when approving
Cornerstone's application. Code § 15.2-2303(A) provides:
The governing body may also accept amended proffers
. . . . Once proffered and accepted as part of an
amendment to the zoning ordinance, such conditions
shall continue in effect until a subsequent amendment
changes the zoning on the property covered by such
conditions.
In other words, once the governing body accepts voluntary
proffers, such proffers become conditions of the rezoning and,
once entered into law, the conditions become zoning
regulations. Id.
Long Lane contends that "on the property covered by such
conditions" in Code § 15.2-2303(A) refers to the undivided
property originally owned by High Point, to which the ZM-98
proffers applied. Under Long Lane's theory, the Town cannot
subsequently amend zoning relating to property governed by
approved proffers unless all landowners subject to the proffers
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consent. Long Lane contends that Code § 15.2-2303(A)
implicitly requires its consent because otherwise the Town
would be imposing involuntary proffers upon it.
The ordinance changing the zoning of Cornerstone’s
property was a subsequent amendment that changed the zoning of
part of the property covered by the previously accepted ZM-98
proffers. As a result of the rezoning, the ZM-98 proffers
properly no longer applied to Cornerstone's property. See Code
§ 15.2-2303(A).
Long Lane's parcel was not rezoned and the ZM-98 proffers
"continue in effect" because a subsequent amendment has not
changed the zoning on its "property covered by such
conditions." See Code § 15.2-2303(A). Although the rezoning
peripherally changes Long Lane's expectations as to its
property, it does not directly affect the zoning of Long Lane's
property. Because the Town did not impose any new proffers or
conditions on Long Lane's property, the rezoning of
Cornerstone's property did not subject Long Lane to any
involuntary proffers.
It is undisputed that it is within the Town's authority to
enact zoning ordinances. See Code § 15.2-2285(A) ("The
planning commission of each locality may . . . prepare a
proposed zoning ordinance . . . ."). It is also undisputed
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that it is within the Town's authority to amend zoning
ordinances. Code § 15.2-2286(A)(7) provides:
Whenever the public necessity, convenience, general
welfare, or good zoning practice requires, the
governing body may by ordinance amend, supplement, or
change the regulations, district boundaries, or
classifications of property. Any such amendment may
be initiated (i) by resolution of the governing body;
(ii) by motion of the local planning commission; or
(iii) by petition of the owner . . . of the property
which is the subject of the proposed zoning map
amendment . . . .
The adoption of written proffers is a legislative act.
Jefferson Green Unit Owners Ass'n v. Gwinn, 262 Va. 449, 458,
551 S.E.2d 339, 343 (2001) ("[A] zoning ordinance may include
written proffers. Thus, the proffers become part of the zoning
ordinance. As such, they are legislative enactments.").
Legislative actions of a local government are
presumed to be valid and will not be disturbed by a
court absent clear proof that the action is
unreasonable, arbitrary, and bears no reasonable
relation to the public health, safety, morals, or
general welfare. If the reasonableness of the
enactment is fairly debatable, a court will not
substitute its judgment for that of the legislative
body, and the legislation will be sustained.
City Council v. Harrell, 236 Va. 99, 101-02, 372 S.E.2d 139,
141 (1988).
The Leesburg Town Council had the authority to amend the
High Point Rezoning Ordinance, in whole or in part. When
considering the rezoning application, the Town took into
account the effect the zoning legislation would have on the
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citizens of the Town. Long Lane was able to raise its concerns
to the planning commission and town council before the Town
approved Cornerstone's application.
There is no authority for the circuit court's ruling that
the voluntary proffer requirement of Code § 15.2-2303(A)
required all successors in title to High Point to agree prior
to any portion of the subdivided parcel being rezoned. Long
Lane had no vested right that deprived the Town of its
legislative authority to enact zoning ordinances.
The Town acted pursuant to its statutory authority in
rezoning Cornerstone’s property and granting it a special use
permit and there is no evidence that its actions in doing so
were unreasonable. The circuit court erred in holding that the
rezoning of Cornerstone’s property and issuance of the special
use permit were illegal and void.
In the instant case, the Town amended its Town Plan as a
result of the Cornerstone rezoning application. In amending
the Town Plan, the Town determined that it no longer desired to
have Tolbert Lane intersect with Battlefield Parkway because
other roads in the vicinity had developed. The Town's
amendment of the Town Plan was a legislative act that was not
unreasonable. Long Lane did not have a vested right in the
construction of a road shown on the Town Plan and the Town did
not need Long Lane's consent to amend its plan. The circuit
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court erred in holding that the amendment to the Town Plan was
null and void.
Conclusion
Accordingly, for the reasons stated in this opinion, we
will reverse the judgment of the circuit court and enter final
judgment for the Town and Cornerstone.
Reversed and final judgment.
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