Hale v. BOARD OF ZONING APPEALS, TOWN OF BLACKSBURG

Present: All the Justices

EDWARD HALE, ET AL.

v. Record No. 081000

BOARD OF ZONING APPEALS FOR
THE TOWN OF BLACKSBURG, ET AL.
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
February 27, 2009
TOWN OF BLACKSBURG, ET AL.

v. Record No. 081001

BOARD OF ZONING APPEALS FOR
THE TOWN OF BLACKSBURG, ET AL.

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M.D. Turk, Judge

In these consolidated appeals, the principal issue we

consider is whether the circuit court correctly applied Code

§ 15.2-2307 in finding that the owner/developers of a parcel

of real property obtained a vested right to a particular use

of the property under a rezoning ordinance subject to their

proffers and, thus, are not subject to a subsequent amendment

to the locality’s zoning ordinance that placed a limitation on

that use. We also consider whether Code § 15.2-2298(B) would

bar the locality from enforcing the amendment of the zoning

ordinance against the property.

BACKGROUND

The material facts are not in dispute. Under familiar

principles, those facts will be stated in the light most
favorable to the appellees, the prevailing parties in the

circuit court. Patton v. City of Galax, 269 Va. 219, 222, 609

S.E.2d 41, 42 (2005); Matthews v. Board of Zoning Appeals, 218

Va. 270, 282, 237 S.E.2d 128, 135 (1977).

In 2005, Llamas, LLC obtained controlling rights in a

39.63-acre parcel of real property located in the Town of

Blacksburg. 1 The majority of the property was within a “Low-

Density Residential District,” which is primarily limited to

single family detached dwellings and does not permit any use

for retail sales. See Blacksburg Zoning Ordinance §§ 3040,

3041.

In January 2006, the developers applied to the Town to

rezone 26.63 acres of the property as a General Commercial

District, which at the time included “Retail Sales” as a use

by right without limitation to the gross floor space of a

1
Llamas, LLC subsequently entered into agreements for the
development and purchase of the property with Diversified
Investors XIII, LLC, Fairmont Properties, LLC, and Fairmont
University Realty Trust, LLC, and these entities joined with
Llamas, LLC in responding as the real parties-in-interest to
the writs of certiorari to the Board of Zoning Appeals of the
Town of Blacksburg in the circuit court. We will refer to
these parties collectively as “the developers” throughout this
opinion.
2
single structure devoted to that use. 2 Blacksburg Zoning

Ordinance § 3151. Following the initial application for

rezoning, the developers met with neighboring landowners to

discuss their concerns about the proposed use of the property.

The developers also met and negotiated with the Town’s

planning staff, the Blacksburg Planning Commission, and the

Blacksburg Town Council to reach a mutually satisfactory

understanding of the nature of the proposed project to develop

the property. Ultimately, the developers and the Town reached

an agreement concerning certain development proffers placing

conditions and restrictions on the use of the property once

its zoning classification had been changed. See Code § 15.2-

2298(A); Blacksburg Zoning Ordinance § 1160 (both authorizing

written proffers of reasonable conditions included in rezoning

ordinances).

As relevant to the issues raised in this appeal, the

proffers were expressly set out in an amendment to the

original rezoning application dated May 3, 2006. The amended

2
The rezoning ordinance ultimately adopted by the
Blacksburg Town Council in response to the developers’
application uses the term “Conditional General Commercial” to
describe the new classification for the property. While the
Town of Blacksburg Zoning Ordinance does not define a
“conditional general commercial” zoning district, the term
“Conditional” as used in the rezoning ordinance refers to the
use limitations in proffers made by the developers and adopted
as part of the ordinance as permitted by Code § 15.2-2298.
3
application incorporated by reference an original set of

proffers dated February 27, 2006 and several revisions

thereto. The proffers included increases in certain setback

requirements above what would normally be required in the

General Commercial District, the requirement to construct

perimeter fences and landscape buffers in certain areas, the

construction of a multi-use path though the property that

would connect with a system of other greenways in the Town,

limitations on vehicular traffic, and the placement of private

drives or private roads. The only restriction on building

size within the proffers was a limitation of building height

in certain areas.

The proffers also restricted the permissible uses of the

property by excluding certain types of businesses that would

otherwise be permitted as a matter of right in a General

Commercial District. The proffers went on to describe the

project, which at that time was designated as “University

Towne Center,” as having a “‘Traditional Neighborhood’ design”

and that its “[r]etail and commercial structures” would adhere

to this design by varying the appearance of such structures in

one or more of their architectural features at least every

sixty feet. In keeping with this design concept, large-scale

parking lots were to be divided into four or more sections by

4
landscaping and buildings. The proffers further described the

entire project as

an exciting “main-street” retail destination that
invites neighbors and guests to enjoy a host of
offerings such as specialty shops, unique dining
establishments, and entertainment – all within a
short stroll. The architecture shall resemble the
vernacular of Blacksburg with casual elegance and a
pedestrian-friendly, tree-lined boulevard.

Similarly, the developers’ vision statement in the

rezoning application described the project as

a mixed use town center with commercial,
residential, office, retail, hotel, entertainment,
public, and cultural facilities interconnected with
open spaces in a cohesive development that provides
a distinctive appearance and true sense of space.
Pedestrian-scale storefronts, small-scale shopping,
walkways, manicured landscaping, and open public
areas compliment one another to create a social
atmosphere. The development of the property
adjacent to residential neighborhoods will be
sensitive to the character and concerns therein.

A conceptual plan submitted with the rezoning application

also described the project as a mixed use retail, commercial,

and residential development. A “preferred illustrative plan”

showed the project as consisting of buildings of varying size

surrounded by small parking areas with islands for landscaping

and lighting. At the northern end of the project, which

bordered on Country Club Drive and was designated in the

proffers as the “Country Club Proffer Section,” the plan

showed one moderate-sized building and four smaller buildings

surrounded by divided, landscaped parking areas.

5
 The proffers also described how “shops with colorful

windowscapes will line the development’s ‘main street’ and

unique residential dwellings can be nestled above.” The

residential aspects of the project were addressed in specific

proffers that limited the residential density of the Country

Club Proffer Section to 400 total bedrooms and permitted no

more than 48 bedrooms per acre should that section of the

property be subdivided. Another illustrative design concept

showed how mixed use buildings within the project would

include retail stores, restaurants, or other commercial uses

on the ground floor, with residential condominiums and

townhomes on the upper floors. 3

As previously indicated, at the time the rezoning

application was submitted, the General Commercial District

included “Retail Sales” as a permitted use without conditions.

Blacksburg Zoning Ordinance § 3151. Although the zoning

ordinance did not provide for any limitation of gross floor

space in a commercial building in the district, no structure

in the conceptual plan submitted with the rezoning application

3
The General Commercial District includes the conditional
right to construct multi-family dwellings, Blacksburg Zoning
Ordinance § 3151, but the proffers did not expressly provide
for a waiver of the condition. The proffers also limited the
residential density on the remaining portion of the property
to the south of the Country Club Proffer Section, which was
designated as the “Kennedy Proffer Section.”
6
exceeded 80,000 square feet of gross floor space for a single

retail sales use.

In a staff report prepared by Steve M. Hundley, the

Town’s Zoning Administrator, it was noted that “the plan in

the application is for illustration only.” Thus, Hundley

opined that, other than as limited by express proffers,

rezoning the property “would allow any use that is permitted

in the G[eneral] C[ommercial] [D]istrict.”

On May 9, 2006, the Blacksburg Town Council approved the

developers’ application to rezone the property from low-

density residential use to general commercial use. Blacksburg

Town Ordinance § 1412 (hereinafter, “the May 9, 2006 rezoning

ordinance”). Typical of such large-scale projects, the

developers then began a process of submitting interim plans to

the Town’s zoning office to receive guidance on whether added

details and changes to the conceptual plan comported with the

proffers and other zoning requirements.

On January 11, 2007, a “preliminary site plan,”

designating the project as “South Main Blacksburg” and

purporting to show the “proposed merchandising plan,” was

included as an attachment in a letter to Hundley from an

attorney representing the developers. Although the subject of

the communication was limited to a specific proffer concerning

restriction of vehicular traffic and a proposed carport

7
structure within the project, the site plan depicted a

significant change to the proposed construction on the Country

Club Proffer Section. Where previously there had been

multiple mixed use structures of moderate size surrounded and

separated by small, divided parking areas, the plan now

depicted a single large structure, divided into four roughly

equal spaces with an open area to the west of the structure.

The depicted entrance to the main spaces of the structure

faced away from the adjoining public road to the north, while

to the south the front of the structure abutted a large

parking lot with approximately a dozen small landscaping

islands. Neither the total size of the structure nor its

intended use were indicated in the materials submitted with

the letter, but several “detail drawings” which were included

in the site plan indicated that one or more of the sections of

the structure would contain at least 30,000 square feet of

gross floor space.

On January 22, 2007, Hundley replied to the January 10,

2007 letter. In addition to addressing the specific issue

raised concerning vehicular traffic, Hundley also noted

several other aspects of the plan that “do[] not comply with

several of the other proffers.” However, the response did not

address the changes in the proposed layout of the Country Club

Proffer Section.

8
 On January 26, 2007, Rick Howard, the project manager for

the developers, submitted a slightly different version of the

South Main Blacksburg site plan to Hundley for “a preliminary

review.” In a letter dated February 9, 2007, Hundley again

noted several deficiencies with respect to the plan and

expressly reminded Howard that the proffers and conceptual

plan “are part of the final amended Rezoning Application” as

approved by the Town.

On February 23, 2007, Howard submitted to Hundley a

revised site plan for the project, now designated as

“Boulevards at Blacksburg,” requesting that he “review the

current site plan to determine if the proposed layout is in

conformance with the Town of Blacksburg Ordinances governing

the site.” In accompanying materials, the single large

structure on the Country Club Proffer Section was described as

containing 176,000 square feet of gross floor space. Although

the site plan still appeared to divide this structure into

four principal sections, in the accompanying materials it was

treated as a single unit designated as being exclusively for

“retail.” The large parking lot adjoining the structure

remained unchanged in size and design, except that the plan

depicted additional landscaping islands.

In a letter dated March 6, 2007, Hundley again advised

Howard of several deficiencies in the proposed site plan

9
including the failure of some landscaping islands to conform

to the minimum dimensions required by the proffer, an overall

deficit in the number of the landscaping islands, and an

imbalance in the distribution of the parking spaces relative

to the structures the parking lots were intended to serve.

Although Hundley opined that, other than the items mentioned,

the “site plan appears to comply with all proffer[ed] site

development requirements,” the letter made no direct reference

to the changes in the number and size of the structures to be

built on the Country Club Proffer Section.

On March 27, 2007, in response to concerns expressed by

citizens that the developers intended to construct a “big box”

retail store 4 on the Country Club Proffer Section, the Town

Council adopted a resolution directing the Town’s Planning

Commission to “fast track” consideration of changes to the

zoning ordinance to restrict the size of retail sales

structures in a General Commercial District. On April 10,

2007, the Town Council considered a proposed amendment that

would create a new category of “Retail Sales, Large Format” in

a General Commercial District that would require a special use

4
The term “big box” generally “refers to free standing
warehouse-retail chains, such as Wal-Mart, Target, and Home
Depot, that offer a variety of services.” Hartley v.
Dillard’s, Inc., 310 F.3d 1054, 1058 n.2 (8th Cir. 2002); see

10
permit approved by the Town Council. The amendment defined a

Retail Sales, Large Format use as

[r]etail sales uses, including those uses classified
more specifically by these use type classifications,
located in one structure in excess of 80,000 square
feet gross floor area, whether on a single lot or
contiguous lots owned or operated as associated,
integrated, or cooperative business enterprises.

On May 1, 2007, at a meeting of the Planning Commission,

Brandol Harvey, the Town’s Planning Director, opined that the

developers would not obtain any vested rights for use of the

property until a final site plan for the project had been

approved. On May 4, 2007, the developers sent to the Town’s

Zoning Office for approval a final site plan for “First &

Main: Phase 2,” which covered the Country Club Proffer Section

of the project. 5 The developers contended that the Town was

required to approve or deny the plan within fifteen working

days of its submission, and the plan submittal receipt gave

also Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341,
345, 650 S.E.2d 92, 94 (2007).
5
The developers also submitted for approval a final site
plan for “First & Main: Phase 1,” which was the Kennedy
Proffer Section. A traffic impact study and a transportation
improvement plan, covering both parts of the project, were
also submitted for approval. Although the record is not clear
as to the date of these submissions, the record numbers
assigned to them by the Town suggest that they were filed at
the same time as the two site plans.

11
the “Date . . . Due Out” as May 25, 2007. 6 However, the Zoning

Administrator made a notation on the receipt that the Town had

“up to 60 days” to review the plans.

On May 10, 2007, the developers filed a complaint in the

Circuit Court of Montgomery County against the Town, the Town

Council, and Hundley in his capacity as Zoning Administrator.

The developers alleged that Hundley was deliberately delaying

the process of approving the site plan in order to permit the

Town Council to vote on the proposed amendment creating the

Retail Sales, Large Format special use classification for the

General Commercial District. They also advanced several legal

theories in support of their assertion that they already had a

vested right to build a retail sales structure in excess of

80,000 square feet of gross floor space on the property. The

developers sought a declaratory order to that effect, an

6
Code § 15.2-2307 provides, in part, that one method for
obtaining a vested right to use of a property is if “the
governing body or its designated agent has approved a
preliminary . . . site plan or plan of development for the
landowner’s property and the applicant diligently pursues
approval of the final . . . plan within a reasonable period of
time under the circumstances.” The developers conceded that
the submission of a supposed final site plan, despite not yet
having received approval of any of the preliminary plans
submitted, and their insistence that it be approved or
rejected within fifteen working days was an attempt to assure
that they would obtain a vested right to construct a retail
sales structure in excess of 80,000 square feet of gross floor
space.

12
injunction prohibiting the Town from interfering with the

right, and a writ of mandamus directing Hundley to complete

the review of the submitted site plan within fifteen working

days of its submission. 7

On May 25, 2007, Hundley and James E. Henegar, Jr., the

Blacksburg Town Engineer, advised the developers by letter

that the traffic impact study and the transportation

improvement plan for the project were not approved, citing

multiple areas in which the submissions were deficient. They

further advised the developers that the review of the site

plans for “Phase 1” and “Phase 2” was continuing.

On May 29, 2007, the Town Council approved Blacksburg

Town Ordinance § 1450 adopting the proposed amendment to the

zoning ordinance (hereinafter, “the May 29, 2007 amendment”)

creating the special use category of Retail Sales, Large

Format in the General Commercial District. In a letter dated

June 18, 2007, Hundley advised the developers that, based on

the site plan of First & Main: Phase 2 submitted for approval

7
Although the circuit court subsequently ruled that the
developers had not exhausted their available administrative
remedies and, thus, the controversy alleged in the May 10,
2007 complaint was not yet ripe for a declaratory
determination or award of injunctive relief, the court did not
dismiss the complaint and it remains pending on the circuit
court’s docket. However, the issues raised therein have, for
all intents and purposes, been subsumed within the subsequent
proceedings that led to these appeals.
13
on May 4, 2007, he had “preformed [a] vested rights

determination concerning the effect of the new special use

permit for large format retail sales uses on [the developers’]

project.” In an attached determination memorandum, Hundley

reviewed the history of the May 9, 2006 rezoning ordinance and

then addressed each of the contentions made in the May 10,

2007 complaint for declaratory and injunctive relief asserting

that the right to construct a retail sales structure without

limitation to its size had already vested as a result of the

proffers made in obtaining the rezoning. Rejecting each of

the developers’ contentions, Hundley concluded that the

developers had not acquired a vested right to the unrestricted

retail sales use permitted in the General Commercial District

prior to the May 29, 2007 amendment of the zoning ordinance.

Thus, Hundley concluded that “the subject property is subject

to the provisions of Ordinance 1450.” The Blacksburg Town

Attorney co-signed the determination of rights memorandum,

concurring as to the conclusions of law therein. In both the

determination of rights memorandum and in the cover letter,

Hundley advised the developers that the determination could be

appealed to the Board of Zoning Appeals for the Town of

Blacksburg (“BZA”).

In subsequent letters dated June 27, 2007 for First &

Main: Phase 1 and June 29, 2007 for First and Main: Phase 2,

14
Hundley advised the developers that the approval of the site

plans submitted on May 4, 2007 had been denied. In each

denial letter, Hundley listed numerous deficiencies in the

site plans. With respect to Phase 2, the Country Club Proffer

Section, Hundley specifically noted that the proposed

structure constituted a Retail Sales, Large Format use and

would require a special use permit. Hundley further concluded

that the elimination of a mixed use, multi-building design for

that section of the project violated the provision of the

proffers requiring the project to follow a “Traditional

Neighborhood Design.” Specifically, Hundley noted that the

proffers required the design to have a “discernable center”

consisting of a landscaped plaza, square, traffic circle,

outdoor restaurant or similar pedestrian area, and further

required that that parking areas to be divided into four or

more landscaped sections.

By letter dated July 3, 2007, the developers advised

Hundley and the BZA of their intent to appeal Hundley’s

determination that they did not have a vested right to an

unrestricted retail sales use of the property. The developers

asserted that Hundley “erred in finding that [the developers

do] not have vested rights under Va. Code § 15.2-2298(B) and

15.2-2307.” Specifically, they contended that Hundley had

erred in finding that there had been no “significant

15
affirmative governmental act” as that term is used in Code

15.2-2307, in finding that the Town “has not accepted proffers

or proffered conditions which specify use related to the

zoning amendment” as required by the statute, and in finding

that the proffers failed to “specify a use for which the

subject property would be developed.”

On July 25, 2007 and July 31, 2007, the BZA conducted

public hearings on the developers’ appeal of Hundley’s

determination that there was no vested right to a retail sales

use of the property under the rezoning ordinance as

conditioned by their proffers which would permit the

developers to build a large format retail sales structure

without first obtaining a special use permit. There was a

high level of public participation at the meetings, with

sentiment running strongly against permitting a “big box”

retail store to be built on the property. At the conclusion

of the July 31, 2007 meeting, however, the BZA voted

unanimously to overturn the Zoning Administrator’s

determination and ruled that the developers had a vested right

to the retail sales use permitted in a General Commercial

District consistent with the Retail Sales use classification

of Blacksburg Zoning Ordinance § 3151 as in effect prior to

the May 29, 2007 amendment that limited such structures to no

16
more than 80,000 square feet of gross floor space unless a

special use permit was obtained.

On August 27, 2007, the Town, the Town Council, the

Town’s Department of Planning and Engineering, and Hundley,

acting in his capacity as Zoning Administrator, (collectively,

“the Town”), jointly filed a petition for a writ of certiorari

in the Circuit Court of Montgomery County seeking a review of

the BZA’s decision. On August 30, 2007, Edward Hale, as lead

plaintiff, and twenty other residents of Blacksburg

(collectively, “the residents”) filed a separate petition for

a writ of certiorari in the circuit court also seeking a

review of the BZA’s decision. The residents alleged that all

the plaintiffs “own property located adjacent to or in close

proximity to the property subject to the [BZA’s] [d]ecision.” 8

Both petitions made substantially the same allegations of

facts and asserted concordant theories of errors of law they

maintained the BZA had made in awarding the developers a

vested right to an unrestricted retail sales use of the

property. The circuit court entered an order consolidating

8
The developers challenged the legal standing of Hale and
the other residents to seek certiorari. On January 23, 2008,
the circuit court entered an order finding that the residents
had standing, and the developers do not challenge that aspect
of the court’s judgment in this appeal.

17
the two petitions, and the cases were thereafter tried

together.

On September 27, 2007, the developers filed a response to

the residents’ petition. 9 Therein, they contended that the BZA

had properly determined that all the requirements of Code

§ 15.2-2307, including that the proffers accepted by a

locality as a condition of rezoning should “specify use,” had

been met. The developers contended that the statute did not

require the proffers to expressly nominate any specific use in

order for the landowner to obtain vested rights. Rather, they

contended that so long as the proffers did not place

limitations on otherwise permissible uses, the landowner

became vested with the right to all such uses provided that

the other requirements of the statute were met. Because the

proffers had prohibited certain uses otherwise permissible in

a General Commercial District and also placed additional

restrictions on other uses of the property, such as the

increased setbacks and limitations on building height, the

developers contended that they had acquired a vested right to

the retail sales use permitted in the General Commercial

9
The developers did not file a response to the Town’s
petition prior to consolidation of the cases.

18
District prior to the May 29, 2007 amendment of the zoning

ordinance.

The developers further contended that Code § 15.2-2298(B)

also supported the BZA’s decision overturning the Zoning

Administrator’s determination. They contended that one of the

proffers required the developers to create a multi-use path

through the project as part of the Town’s pedestrian and

bicycle greenways. Conceding that this proffer did not

require the developers to deed the path to the Town, they

nonetheless contended that the requirement that the path be

integrated into the greenway system satisfied the requirement

of the statute that the landowner would dedicate “real

property of substantial value” for public use that was not

“generated solely by th[e] [re]zoning itself.” They further

noted that another proffer required the developers to pay

$25,000 toward the cost of improvements to a street

intersection that was not directly adjacent to the project,

which they contended constituted a “substantial cash payment[]

for . . . substantial public improvements” under the statute.

Asserting that, under such circumstances, Code § 15.2-2298(B)

provides that any subsequent amendment to the zoning ordinance

which eliminates or materially reduces or modifies the

permitted uses in the zoning district is not applicable to the

property, the developers contended the Town was barred from

19
enforcing the May 29, 2007 amendment of the zoning ordinance

with respect to the property.

On December 10, 2007, the Town filed a memorandum

responding to the contentions made by the developers in their

response to the residents’ petition. The Town asserted that

Code § 15.2-2307 did not provide for the vesting of a right to

the retail sales use of the property because the developers’

proffers did not expressly specify that such use would be made

of the property expect as part of a mixed use, traditional

neighborhood design. The fact that the proffers prohibited

certain uses and placed general restrictions on others was not

sufficient to establish a right to all other uses permissible

in the General Commercial District at the time of the

rezoning. The Town further asserted that the proffers did not

require the developers to dedicate any property or make

“substantial” payments to Town and, thus, Code § 15.2-2298(B)

did not bar the Town from enforcing the May 29, 2007 amendment

of the zoning ordinance requiring the developers to obtain a

special use permit for any large scale retail use of the

property. The residents also filed a hearing memorandum

raising substantially the same assertions as the Town.

On December 19, 2007, the circuit court conducted a

hearing on the consolidated petitions for writs of certiorari.

The parties reiterated their positions with respect to the

20
application of Code §§ 15.2-2307 and 15.2-2298(B), but

otherwise did not raise any additional issues relevant to

these appeals.

On January 24, 2008, the circuit court issued an opinion

letter in which it limited its analysis of the issues to the

application of Code § 15.2-2307. Relying on this Court’s

decision in City of Suffolk v. Board of Zoning Appeals, 266

Va. 137, 580 S.E.2d 796 (2003), the court found that the May

9, 2006 rezoning ordinance and the incorporated developers’

proffers constituted a “significant affirmative governmental

act” under the statute, that the developers “were pursuing the

development of this property in reliance on the [rezoning]

ordinance,” and that the proffers had adequately identified

the specific tract of land and the specific project subject to

the proffers.

The circuit court expressly rejected the contention of

the Town and the residents that because the proffers did not

specify retail sales as a separate, intended use of the

property, the developers could not obtain a vested right to

that use. Rather, the court agreed with the developers that

the proffers were sufficient to satisfy the requirement of the

statute that they “specify use.” The court specifically noted

that the proffers “limit certain uses of the property that

would normally be allowed under the general commercial zoning

21
for the Town [and] limit[] the residential density of the

proposed project and further provide[] for safeguards such as

buffering zones, etc. throughout the course of the project to

protect the surrounding residential areas.”

Accordingly, the circuit court ruled that the BZA did not

err in overturning Hundley’s determination that the developers

did not have a vested right to use the property for retail

sales in accord with the General Commercial District

classification as in effect prior to the May 29, 2007

amendment of the zoning ordinance. On February 25, 2008, the

court entered a final order affirming the decision of the BZA,

incorporating by reference the findings of fact and

conclusions of law in the January 24, 2008 opinion letter.

Both the Town and the residents noted their objections to the

order and each filed notices of appeal from the court’s

judgment.

By orders dated September 10, 2008, we awarded appeals to

both the Town and the residents, consolidating those appeals

for argument and decision. By an order dated November 12,

2008, we permitted the Local Government Attorneys of Virginia,

Inc., The Virginia Association of Counties, and the Virginia

Municipal League to appear on brief as amici curiae in support

of the Town.

22
 DISCUSSION

The review of a decision of a board of zoning appeals

upon a petition for a writ of certiorari filed in a circuit

court is governed by Code § 15.2-2314. Prior to July 1, 2006,

the statute, as interpreted by decisions of this Court,

provided that the board’s findings of fact and conclusions of

law were both vested with a presumption of correctness and,

thus “the appealing party [had] the burden of showing that the

board applied erroneous principles of law or that its decision

was plainly wrong and in violation of the purpose and intent

of the zoning ordinance.” City of Suffolk, 266 Va. at 142,

580 S.E.2d at 798. Similarly, “[a] circuit court decision

affirming a board of zoning appeals determination [was] also

accorded this presumption of correctness on appeal to this

Court.” Id. at 142-43, 580 S.E.2d at 798 (citing Natrella v.

Board of Zoning Appeals, 231 Va. 451, 456, 345 S.E.2d 295, 299

(1986)).

However, under an amendment to Code § 15.2-2314 effective

on July 1, 2006 only “the findings and conclusions of the

board of zoning appeals on questions of fact shall be presumed

to be correct,” and “[t]he [circuit] court shall hear any

arguments on questions of law de novo.” 2006 Acts ch. 446

(emphasis added); see Board of Supervisors of Loudoun County

v. Town of Purcellville, 276 Va. 419, 439, 666 S.E.2 512,

23
521-22 (2008); see also Goyonaga v. Board of Zoning Appeals,

275 Va. 232, 241 n.3, 657 S.E.2d 153, 158 n.3 (2008); Trustees

of the Christ and St. Luke’s Episcopal Church v. Board of

Zoning Appeals, 273 Va. 375, 380 n.3, 641 S.E.2d 104, 106 n.3

(2007). We have since held that, as a result of the 2006

amendment of Code § 15.2-2314, the judgment of a circuit court

in such cases is no longer presumed to be correct on appeal

and “its conclusions of law are reviewed de novo.” Lovelace

v. Orange County Board of Zoning Appeals, 276 Va. 155, 158,

661 S.E.2d 831, 832 (2008).

The Town and the residents each raise a single assignment

of error in their respective appeals. In substance, they

assert that the circuit court erred in determining under the

facts of this particular case that the adoption of the May 9,

2006 rezoning ordinance constituted a significant affirmative

governmental act allowing development of a specific project

within the meaning of Code § 15.2-2307.

The developers respond that the circuit court properly

found that the proffers they agreed to in this case satisfy

the requirements of the statute so as to afford them the

vested right that they claimed. Alternately, the developers

contend that even if the requirements of Code § 15.2-2307 were

not met, they are nonetheless entitled to assert the

application of Code § 15.2-2298(B) because the proffers

24
include the requirement to expend funds for and devote part of

their property to public use, thus entitling them to be free

of the effect of any subsequent amendment of the

classification to which their property was rezoned.

Replying to the developers’ assertion of the application

of Code § 15.2-2298(B), the Town and the residents contend

that the requirement in the proffers that the developers

construct a multi-use path on the property is not a

“requirement for the dedication of real property of

substantial value, or substantial cash payments for or

construction of substantial public improvements, the need for

which is not generated solely by the rezoning itself.” Id.

Thus, they maintain that Code § 15.2-2298(B) does not bar the

Town from enforcing the change in the permissible uses in the

General Commercial District that requires a special use permit

for Retail Sales, Large Format structures.

The interpretation of Code §§ 15.2-2307 and 15.2-2298(B),

as well as their application to the proffers incorporated in

the May 9, 2006 rezoning ordinance, are questions of law and,

accordingly, the judgment of the circuit court in this case is

subject to a de novo review by this Court. Lovelace, 276 Va.

at 158, 661 S.E.2d at 832. Moreover, under settled principles

of statutory construction, we are bound by the plain meaning

of the statutory language. Hicks v. Mellis, 275 Va. 213, 218,

25
657 S.E.2d 142, 144 (2008); Young v. Commonwealth, 273 Va.

528, 533, 643 S.E.2d 491, 493 (2007); Alliance to Save the

Mattaponi v. Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78,

86-87 (2005). Applying these principles to the issues raised

in these appeals, we will address the vested rights issue

under Code § 15.2-2307 first, since it was the basis of the

circuit court’s judgment.

All the parties, including the amici, rely heavily in

their briefs upon this Court’s opinion in City of Suffolk,

each contending that the rationale of the decision in that

case supports their respective views of the application of

Code § 15.2-2307 to the facts of this case. We note, however,

that the resolution of the issue in that case did not depend

on whether the City had “accepted proffers or proffered

conditions which specify use related to a zoning amendment.”

Code § 15.2-2307 (second paragraph). Indeed, no discussion of

that aspect of the statute appears in the majority opinion,

and the specific language is quoted by the dissent only in

passing. City of Suffolk, 266 Va. at 150, 580 S.E.2d at 802

(Keenan, J., dissenting). And, while the facts of that case

did deal with rezoning proffers that included limitations on

residential density as in this case, the appellants in City of

Suffolk did not contest that “such a rezoning meets the new

criteria in subsection (ii) of the second paragraph of Code

26
§ 15.2-2307 whereby ‘rezoning for a specific use or density’

is ‘deemed to be a significant affirmative governmental act’”

that would give rise to a vested right to the specified use

subject to those limitations. Id. at 144, 580 S.E.2d at 799.

Rather, the issue in City of Suffolk was whether the

landowner had sufficiently identified the “specific project”

to which the proffers for rezoning applied and had diligently

pursued the development of that project after obtaining the

rezoning. Id. Accordingly, while aspects of the discussion

in City of Suffolk are instructive for interpreting Code

§ 15.2-2307, the decision in that case is not dispositive of

the issue raised in this appeal with respect to that statute. 10

The tension that exists between the right of a landowner

to make use of his property to his advantage and the necessity

that local governments be permitted to restrict the use of

land within their borders in order to assure orderly and

10
It should further be noted that City of Suffolk, in
which we affirmed a judgment of the circuit court upholding a
decision of a board of zoning appeals, was decided under the
former version of Code § 15.2-2314 and, thus, the decisions of
the board and the circuit court were entitled to a presumption
of correctness as to the conclusions of law upon which they
were based. City of Suffolk, 266 Va. at 142-43, 580 S.E.2d at
798. Accordingly, even if we were to find that the decision
in City of Suffolk was directly applicable to this case, we
would nonetheless be required to revisit the issues addressed
therein in order to apply a de novo standard to the circuit
court’s application of Code § 15.2-2307 as required by Code
§ 15.2-2314 as amended.
27
beneficial growth and redevelopment has resulted in the

General Assembly, beginning in the early twentieth century,

creating a statutory framework for zoning and development

which places responsibilities on both landowners and

localities. See E. A. Prichard & Gregory A. Riegle, Searching

For Certainty: Virginia’s Evolutionary Approach To Vested

Rights, 7 Geo. Mason L. Rev. 983, 983 and n.4 (1999). It is

well established in the law that as to an existing use, absent

condemnation and payment of just compensation, the landowner

has the right to continue that use even after a change in the

applicable zoning classification causes the use to become

nonconforming. See, e.g., Board of Supervisors of Fairfax

County v. Board of Zoning Appeals, 271 Va. 336, 348, 626

S.E.2d 374, 381 (2006). 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 ordinance, there is “no vested property right

in the continuation of the land’s existing zoning status.”

Board of Zoning Appeals v. Caselin Systems, Inc., 256 Va. 206,

210, 501 S.E.2d 397, 400 (1998); see also Patton, 269 Va. at

225, 609 S.E.2d at 44.

“ ‘However, 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

28
legislation.’ ” City of Suffolk, 266 Va. at 143, 580 S.E.2d

798 (quoting Caselin Systems, 256 Va. at 210, 501 S.E.2d at

400). Code § 15.2-2307 defines some of the “limited

circumstances” under which a landowner will acquire a vested

right to a future use of his property.

As relevant to this appeal, Code § 15.2-2307 provides:

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.

(Emphasis added.)

“Code § 15.2-2307 provides 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, 275 Va. at 244, 657 S.E.2d at 158, 160

(emphasis omitted). However, “ ‘[t]he mere reliance on a

particular zoning classification, whether created by ordinance

or variance, creates no vested right in the property owner.’ ”

City of Suffolk, 266 Va. at 145, 580 S.E.2d at 799 (quoting

Snow v. Amherst County Board of Zoning Appeals, 248 Va. 404,

408, 448 S.E.2d 606, 608-09 (1994)). Rather, the three

29
specific conditions of the statute’s first paragraph – that

the landowner has been the beneficiary of a significant

affirmative governmental act allowing development of a

specific project, that the landowner relied upon that

governmental act in good faith, and that the landowner has

incurred extensive obligations or substantial expenses in

pursuit of the specific project – must each be met before the

right to maintain a permissible use in the future will be

deemed to have vested.

Code § 15.2-2307 lists six actions that a local governing

body may take, either directly or by a surrogate, which

constitute significant affirmative governmental acts allowing

development of a specific project. While the statute further

provides that the list is not exhaustive, the parties agree

that only the first two of the denoted actions would be

potentially applicable to the facts of this case:

(i) the governing body has accepted proffers or
proffered conditions which specify use related to a
zoning amendment; (ii) the governing body has
approved an application for a rezoning for a
specific use or density; . . . .

Code § 15.2-2307 (emphasis added).

With respect to the first significant affirmative

governmental act denoted in Code § 15.2-2307 and identified

above, the Town and the residents concede that the Town

“accepted proffers or proffered conditions . . . related to

30
[the May 9, 2006] [re]zoning amendment,” but they contend that

for a landowner to acquire a vested right in a particular use,

the proffers must expressly reference that use. In their

view, the proffers made by the developers in this case do not

adequately specify the intended “retail sales” use of the

property so as to entitle the developers to a vested right to

that use free from the subsequent adoption of the May 29, 2007

amendment of the zoning ordinance requiring a special use

permit for a retail sales use that would exceed 80,000 square

feet of gross floor space.

The developers contend that it is not necessary that the

proffers expressly include a reference to a particular

permissible use in order for a landowner to obtain a vested

right to that use. Rather, they contend that so long as at

least one of the accepted proffers touches on the use of the

land in any fashion, an unrestricted vested right can accrue

as to any permissible use of the land not expressly excluded

or limited by the proffers as a whole. In this case, they

note that the proffers accepted by the Town expressly excluded

eight of the permissible uses in the General Commercial

District. The proffers also made restrictions on all other

uses, at least in certain areas of the property, with respect

to building height and increased setbacks, and also specified

other requirements for use of the property such as placement

31
of roads, buffer zones, and the construction of the multi-use

path. Contending that these aspects of the proffers “specify

use,” the developers assert that prior to the May 29, 2007

amendment of the zoning ordinance creating the Retail Sales,

Large Format special use classification, by their good faith

reliance on the May 9, 2006 rezoning ordinance and incurring

obligations and expenses to advance the project, they acquired

a vested right to develop the property under the previously

unrestricted retail sales classification of the General

Commercial District. We disagree.

In 1978, the General Assembly formally authorized certain

local governments to accept voluntary proffers made by

landowners requesting special consideration from the locality

to allow a particular use of property. See 1978 Acts ch. 320

(enacting former Code §§ 15.1-491.1 and 15.1-491.2,

subsequently incorporated into current Code §§ 15.2-2296 and

15.2-2297). Proffers are voluntary commitments made by

landowners in order to facilitate approval of conditional

zoning and rezoning requests by ameliorating the impact of

development of their property on the local infrastructure and

the character and environment of adjoining land. See Prichard

& Riegle, 7 Geo. Mason L. Rev. at 988. In Virginia, proffers,

once accepted, have the force of law equal to the requirements

32
of the zoning ordinance. Id.; see Code §§ 15.2-2297(A) and

15.2-2303(A).

Code § 15.2-2307 provides that a significant affirmative

governmental act includes a circumstance when “the governing

body has accepted proffers or proffered conditions which

specify use related to a zoning amendment.” (Emphasis added.)

The plain meaning of this language is that the proffers must

affirmatively identify the use for which a vested right is

sought. Accordingly, we cannot agree with the developers that

when a particular proffer merely prohibits certain uses that

would otherwise be permitted under the zoning classification

that is sought by the application, by implication the proffers

as a whole are deemed to “specify” all other permissible uses

as being the subsumed within the meaning of the landowner’s

proffers.

Because development proffers, once accepted, have the

force of law that will bind both the local government and the

current and future owner of the property to their terms, the

terms of the proffers must be interpreted according to the

plain meaning of the language used. Just as a court is not

permitted to go beyond the words of a statute to infer a

meaning that is not found in its express language, see, e.g.,

Tazewell County School Board. v. Brown, 267 Va. 150, 161-62,

591 S.E.2d 671, 676-77 (2004), we will not infer a meaning in

33
development proffers that is not found through a plain reading

of the text. Clearly then a development proffer cannot be

said to “specify use” in accord with the requirements of Code

§ 15.2-2307 by a negative inference arising from the absence

of a prohibition of the use within the proffer. Accordingly,

we reject the developers’ contention that the prohibition of

eight specific uses by the proffers in this case constitutes a

specific reservation of a right to all other uses permissible

in the General Commercial District.

Similarly, we reject the developers’ contention that

terms of development proffers that apply to any use of the

property, such as increased setbacks, restrictions on building

height, or the required inclusion of specific support

improvements such as roads and landscaping, “specify use” of

the property in order to create a vested right to any

particular permissible use of the property so long as the

landowner adheres to those restrictions and conditions. The

developers concede that the conceptual plans and the

description of the project in the rezoning application and the

proffers were intended to provide for “flexibility” in the

ultimate development of the property. However, as was

observed during oral argument of these appeals, flexibility is

the opposite of specificity, and specificity is what Code

§ 15.2-2307 requires for a landowner to obtain a vested right

34
through a locality’s acceptance of development proffers in the

context of adoption of a rezoning ordinance. In short, when

vested rights accrue to a landowner as the result of a

significant affirmative governmental act, the rights that vest

are only those that the government affirmatively acts upon,

and the evidence to support the claim to those rights must be

clear, express, and unambiguous.

We have reviewed the final proffers that were accepted by

the Town and incorporated into the May 9, 2006 rezoning

ordinance. Although the project was clearly intended to

include retail business establishments within its mixed use

design, nothing in the proffers would have given the Town

notice that the Country Club Proffer Section would be devoted

exclusively to the unrestricted retail sales use permitted in

the General Commercial District at the time of the rezoning.

There is simply no language in the proffers and nothing in the

attendant materials that were submitted with the rezoning

application that would “specify use” so that it could be found

the developers clearly intended to reserve, or the Town

intended to be bound to, a vested right for an unrestricted

retail sales use of the property.

The developers contend, however, that even if they were

required to “specify use” with particularity in order to claim

a vested right to use the property for unrestricted retail

35
sales and the proffers failed to adequately do so, they

nonetheless were the beneficiaries of a significant

affirmative governmental act under clause (ii) of the second

paragraph of Code § 15.2-2307 in that by accepting the

proffers when adopting the May 9, 2006 rezoning ordinance, the

Town “approved an application for a rezoning for a specific

. . . density.” Because both the Kennedy and Country Club

Proffer Sections had express limitations on the maximum

residential density that would be permitted thereon, the

developers contend that these proffers satisfy this definition

of a significant affirmative governmental act, entitling them

to a vested right to any permissible use of the property under

the General Commercial District.

In support of this contention, the developers assert that

“there is nothing ‘illogical’ about having a residential

density limitation vest a landowner’s rights to use land for

commercial purposes.” Rather, they contend that “it would be

unfair for the locality to accept the diminished residential

density proffers but then downzone the remaining commercial

uses that had induced the owner to agree to the residential-

density reduction.” We disagree.

Nothing in the record supports the developers’ contention

that they were “induced” to proffer the limitations on

residential density in expectation of receiving vested rights

36
to unrestricted development of all commercial uses of the

property. To the contrary, it is clear that the inclusion of

residential density limitations was part of the overall scheme

of the project to create a balanced, mixed use community.

Accordingly, even if we were to assume as the developers

contend that a voluntary proffer of a restriction on one type

of use could be made as an inducement to assure that the

landowner received a vested right to another type of use, this

simply did not occur in this case.

Moreover, we do not agree with the broader premise that a

landowner who is the beneficiary of a significant affirmative

governmental act as the result of a proffer limiting density

on a specific category of use is thereby entitled to claim a

vested right to every use of the land that was permissible at

the time of the act without regard to whether the proffer

restricting density related to the use for which the right is

asserted. There is no doubt that when a locality approves a

request to rezone property based on a proffer that includes a

limitation on the density of a particular use that is less

than would normally be permitted under the new classification,

this would constitute a significant affirmative governmental

act. However, the only vested right that clearly would accrue

to the landowner in that circumstance would be the right to

use the property for the specific use and up to the density

37
that the particular proffer specified. The locality would

unlawfully interfere with such a right only if it were to

attempt to enforce a subsequent change in the zoning

classification that eliminated or restricted the ability to

use the property consistent with the proffer limiting the

density of the specified use. The May 29, 2007 amendment to

the General Commercial District classification did not impair

the ability of the developers in this case to use their

property consistent with the proffered limitations on

residential density thereon.

For these reasons, we hold that the developers were not

the beneficiaries of a significant affirmative governmental

act based on acceptance of proffers that specified retail

sales as the particular use for which they subsequently sought

to establish a vested right, nor did the Town’s acceptance of

the limitation on residential density as part of the proffers

provide the developers with a vested right to non-residential

uses of the property, including unrestricted retail sales.

Accordingly, we hold the circuit court erred in affirming the

decision of the BZA that afforded the developers a vested

right to the retail sales use of the property free from the

restriction of the May 29, 2007 amendment of the zoning

38
ordinance requiring a special use permit for large format

retail sales structures. 11

The developers contend, however, that Code § 15.2-2298

bars the Town from enforcing the May 29, 2007 amendment of the

zoning ordinance against the property, and the judgment of the

circuit court can be affirmed on that basis. The relevant

portion of that statute provides:

B. In the event proffered conditions include a
requirement for the dedication of real property of
substantial value, or substantial cash payments for
or construction of substantial public improvements,
the need for which is not generated solely by the
rezoning itself, then no amendment to the zoning map
for the property subject to such conditions, nor the
conditions themselves, nor any amendments to the
text of the zoning ordinance with respect to the
zoning district applicable thereto initiated by the
governing body, which eliminate, or materially
restrict, reduce, or modify the uses, the floor area
ratio, or the density of use permitted in the zoning
district applicable to the property, shall be
effective with respect to the property unless there
has been mistake, fraud, or a change in
circumstances substantially affecting the public
health, safety, or welfare.

The developers contend that the proffers require them to

make “donations of real property and cash to the Town.”

According to the developers, these “donations” consist of the

11
In light of our resolution of the Code § 15.2-2307
issue on these grounds, we need not consider the further
contention raised by the Town and the residents that the
rezoning application did not adequately identify the “specific
project” which was the subject of a significant affirmative
governmental act.
39
creation of the multi-use path that is to connect to the

Town’s greenway system and a payment of $25,000 for

improvement of a street intersection “that is not on, or

adjacent, to the [p]roperty.” They contend that they will

expend substantial sums to create the multi-use path and that

neither the need for construction of the path nor the cash

payment for the improvement of the intersection was “generated

solely by the rezoning itself.”

The Town and the residents respond that the requirement

for the developers to create the multi-use path does not fall

within the intendment of Code § 15.2-2298(B) because the

proffer does not require the land used for the path to be

dedicated to the Town. They note that the developers will

retain both ownership of and the right to control access to

the path. They further contend that even if the $25,000

payment for the improvement of the street intersection is not

adequately related to the purpose of the rezoning, a $25,000

payment as part of a project valued at over $45,000,000 does

not constitute a “substantial cash payment[] for . . .

substantial public improvements” under Code § 15.2-2298(B).

We agree with the Town and the residents that the

requirement in the proffer that the developers create the

multi-use path through the project to connect to the Town’s

greenway system is not a “requirement for the dedication of

40
real property of substantial value.” The developers attempt

to characterize this provision as a “donation” of the property

is simply not supported by the record. The developers will

continue to own the property over which the path runs, they

will control the design of the path over their property, and

they will be responsible for its maintenance. Accordingly, we

hold that the requirement in the proffer that the developers

create a multi-use path on the property does not constitute a

“dedication of real property” within the meaning of Code

§ 15.2-2298(B).

Similarly, we do not agree that the required contribution

to the cost of the street intersection improvement would

trigger Code § 15.2-2298(B)’s prohibition of enforcing any

subsequent amendment to the zoning classification against the

property. Even if we were to assume that the required cash

payment of $25,000 constituted a “substantial cash payment[]

for . . . substantial public improvements,” id., we find that

the record does not support the developers’ contention that

need for the improvement of the intersection is not related to

the rezoning.

The intersection in question lies just to the north of

the developers’ property. The proffer requiring the cash

payment describes the improvement to the intersection as the

construction of “a roundabout or other traffic calming measure

41
to improve traffic flow at this location.” The necessity to

the developers’ intended project of having improved traffic

flow at a nearby major intersection is self-evident, and the

amount of the required contribution to those improvements is

well within any reasonable estimate of the added cost which

would result from the increased burden on the intersection

arising from the developers’ project. Accordingly, we hold

that the need for the developers to contribute to the cost of

the improvement of the intersection arose as a result of the

developers’ request to rezone the property and, thus, does not

implicate the provisions of Code § 15.2-2298(B).

CONCLUSION

For these reasons, we hold that the circuit court erred

in ruling that the BZA correctly determined that the

developers had a vested right to develop on the property

structures for retail sales in excess of 80,000 square feet of

gross floor space without the necessity of first obtaining a

special use permit. Accordingly, we will reverse the judgment

of the circuit court affirming the decision of the BZA,

reinstate the determination of the Zoning Administrator that a

special use permit will be required for a Retail Sales, Large

Format use of the property, and enter final judgment here for

the Town and the residents.

Record No. 081000 – Reversed and final judgment.

42
Record No. 081001 – Reversed and final judgment.

43