PRESENT: ALL THE JUSTICES
THE CITY OF SUFFOLK EX REL.
STEVE HERBERT, ZONING ADMINISTRATOR
FOR THE CITY OF SUFFOLK, ET AL.
OPINION BY
v. Record No. 021981 JUSTICE G. STEVEN AGEE
JUNE 6, 2003
BOARD OF ZONING APPEALS FOR
THE CITY OF SUFFOLK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
The City of Suffolk ("the City") appeals the judgment of
the Circuit Court of the City of Suffolk affirming the
determination of the Board of Zoning Appeals for the City of
Suffolk ("BZA") that certain land use rights became vested with
respect to a parcel of land owned by Etheridge Manor Corporation
("Etheridge"). For the reasons set forth below, we will affirm
the trial court's judgment.
I. FACTS AND PROCEEDINGS BELOW
In 1985, Etheridge purchased a tract of approximately 164
acres in the City of Suffolk ("the Property"). In conjunction
with an adjoining landowner, Etheridge planned to develop the
combined tracts of 310 acres as a planned unit development known
as King's Landing. In June 1988, at the request of Etheridge
and the adjoining landowner, the Suffolk City Council rezoned
the 310 acres from "Rural Residential" to "Planned Development
Housing" ("PD-H") and approved the Master Land Use Plan
Etheridge submitted for the development. The Master Land Use
Plan reflected a mixed-use and mixed-density development
including medium and high-density residential areas, as well as
commercial parcels.
The adjoining landowner encountered financial difficulties,
including foreclosure, which delayed a joint development of the
project. Etheridge decided to proceed independently and engaged
an engineering firm to review the development options for the
Property in 1993.
In 1994, Etheridge requested that approximately 10 acres of
the Property be rezoned from "PD-H" to "General Business." At
the same time, Etheridge submitted amendments to the 1988 Master
Land Use Plan to change the proposed residential development
areas from mixed density to low density for the remaining 154
acres of the Property. In August 1994, the Suffolk City Council
approved the rezoning of the 10-acre parcel, reduced the density
for the remaining 154 acres to four units per acre, and approved
the Amended Master Land Use Plan. 1
1
The 1988 Master Land Use Plan, and the 1994 amended
version, which continued to identify the project as King's
Landing, show the general location of primary roads, recreation
areas, waterways, and entrances to state highways. Neither plan
contained specific details as to lot locations, curb, gutter,
utilities, residential streets, or storm drainage facilities.
The rezonings and land use plans did fix the number of available
residential units on the Property.
2
In 1995, Etheridge submitted a preliminary recreation plan
and a traffic impact analysis based on a full residential
development of the Property, which the City approved. In 1996,
Etheridge submitted a preliminary subdivision plat for part of
the remaining 154 acres of the Property (designated as
"Planter's Station at King's Landing Section 1, 2 and 3"
("Planter's Station")). 2 The Suffolk Planning Commission
approved this preliminary plat in March 1996, and granted
extensions of time for submission of the final Planter's Station
plat to April 1998. The extensions were requested to
accommodate the engineering design for the entire Property
relating to sewer, water, storm drainage, and related items
since the Planter's Station portion was part of an integrated
infrastructure for the whole Property.
In 1997, Etheridge deeded 1.1 acres of the Property,
without compensation, to the Virginia Department of
Transportation ("VDOT") for road improvements adjacent to the
Property. In April, 1998, Etheridge filed a final plat for
Planter's Station, but no action had been taken on it before
enactment by the City of the Uniform Development Ordinance
("UDO") on September 1, 1999.
2
Planter's Station was to be an entrance to King's Landing
and the first section to be built out.
3
The City's enactment of the UDO changed the zoning
classification of land throughout the city of Suffolk. The UDO
effectively rezoned all of the Property, other than the 10-acre
commercial section, from "PD-H" to "Commerce Park" and "Office-
Institutional."
After the City adopted the UDO, Etheridge requested a
determination by the City's Zoning Administrator that it had
vested rights in the PD-H zoning for the 154 acres. The Zoning
Administrator determined that Etheridge had vested rights in the
Planter's Station section, but not in the remaining portion of
the 154 acres ("the Remainder"), which was the bulk of the
Property. In effect, this determination meant that Etheridge
could not develop the Remainder as residential property, but
only as an office or commerce park, despite its contiguous
location to Planter's Station.
Etheridge appealed the Zoning Administrator's decision to
the BZA, which reversed the Zoning Administrator's determination
and held that Etheridge had vested rights in the PD-H zoning
designation for the Remainder. The trial court granted the City
a writ of certiorari pursuant to Code § 15.2-2314 to review the
BZA decision.
The trial court affirmed the BZA's decision finding that
the 1988 rezoning was a "significant affirmative governmental
act" under Code § 15.2-2307 upon which Etheridge reasonably
4
relied in good faith. The trial court further found that
Etheridge had expended substantial funds in diligent pursuit of
the project and that those expenditures were for development of
the entire Property. This appeal by the City follows.
II. STANDARD OF REVIEW
The decision of a board of zoning appeals is
presumed to be correct on appeal to a circuit
court; the appealing party bears 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. Bd. of Zoning
App. v. Bond, 225 Va. 177, 179-90, 300 S.E.2d
781, 782 (1983); Allegheny Enterprises v.
Covington, 217 Va. 64, 67, 225 S.E.2d 383, 385
(1976). A circuit court decision affirming a
board of zoning appeals determination is also
accorded this presumption of correctness on
appeal to this Court. Natrella v. Board of
Zoning Appeals, 231 Va. 451, 456, 345 S.E.2d 295,
299 (1986).
Masterson v. Bd. of Zoning App., 233 Va. 37, 44, 353 S.E.2d 727,
732-33 (1987).
Our standard of appellate review is well established. A
circuit court's judgment is presumed to be correct and we will
not set that judgment aside unless it appears from the record
that the judgment is plainly wrong or unsupported by the
evidence. Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57,
419 S.E.2d 627, 630 (1992); Code § 8.01-680.
III. ANALYSIS
5
Prior to 1998, this Court's decisions had determined when
landowners acquired vested rights in uses of their property
where the zoning status of that property was changed to prohibit
a previously permitted use.
Privately held land is subject to applicable local
zoning ordinances whether enacted before or after the
property was acquired. 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. 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
legislation.
Board of Zoning Appeals v. CaseLin Systems, Inc., 256 Va. 206,
210, 501 S.E.2d 397, 400 (1998) (internal citations omitted).
In 1998, the General Assembly enacted substantial changes
to Code § 15.2-2307 that established certain criteria which,
when satisfied, conclusively vest property rights in a landowner
regardless of changes in an otherwise applicable zoning
ordinance.
[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.
6
Code § 15.2-2307. The case at bar presents our first
examination of the legislative changes to Code § 15.2-2307.
The City avers in this appeal that the trial court was
plainly wrong in applying the statutory criteria to the record
evidence in this case. Specifically, the City contends that
there was not sufficient evidence in the record that Etheridge
was "the beneficiary of a significant affirmative governmental
act . . . allowing development of a specific project." In the
alternative, the City argues that Etheridge did not incur
"extensive obligations or substantial expenses in diligent
pursuit of the specific project." We disagree with both
contentions.
A. Significant Affirmative Governmental Act
The trial court found that the 1988 rezoning of the
Property to PD-H was a "significant affirmative governmental
act." The City acknowledges that such a rezoning meets the new
criteria in subsection (ii) of the second paragraph of Code
§ 15.2-2307 whereby ”rezoning for a specific use or density" is
"deemed to be a significant affirmative governmental act."
However, the City contends that the 1988 rezoning was not for
"development of a specific project" as required by subsection
(i) of the Code section's first paragraph. Therefore, the City
argues that no "deemed vesting" had occurred.
7
The City cites Town of Rocky Mount v. Southside Inv., Inc.,
254 Va. 130, 487 S.E.2d 855 (1997), and Board of Supervisors of
Chesterfield County v. Trollingwood Partnership, 248 Va. 112,
445 S.E.2d 151 (1994), for the proposition that development
plans in great detail are required before a property owner can
obtain vested rights in a land use classification. The City
implies that these cases establish that Etheridge's King's
Landing project is too vague to be deemed a "specific project"
under Code § 15.2-2307, although the statute does not define
"specific project" and the cases never mention that term.
Southside Inv., Inc., Trollingwood Partnership and other
pre-1998 cases involved determining whether "a significant
governmental act" had occurred with respect to the properties at
issue which accorded vested land use rights to the landowners
despite later zoning changes. In these cases a controlling
factor was the issuance of a specific government land use
authorization, beyond zoning, before vesting of a particular
land use could be found. For instance, in Snow v. Amherst
County Board of Zoning Appeals, 248 Va. 404, 448 S.E.2d 606
(1994), we held that "[t]he mere reliance on a particular zoning
classification, whether created by ordinance or variance,
creates no vested right in the property owner." 248 Va. at 408,
448 S.E.2d at 608-09. However, the plain language of current
Code § 15.2-2307 now makes clear that vested rights accrue when
8
one of the six types of actions listed in the second paragraph
of that Code section occurs. Such acts are deemed to constitute
"significant affirmative governmental acts allowing development
of a specific project," including "rezoning for a specific use
or density" as in the case at bar.
In Southside Inv., Inc., the landowner's property was
rezoned to permit the construction of duplex residences. In
reliance on that zoning, the landowner constructed a street and
utility infrastructure to develop both sides of the street and
completed duplex construction on one side. The landowner had
not filed a site plan to develop the other side of the street
when the zoning was changed to prohibit duplexes. We found no
vested rights in the prior zoning and deemed it dispositive that
no "site plan or permit for the undeveloped portion of the
property" had been issued prior to the change in zoning,
therefore no significant governmental act had occurred as to
that property. 254 Va. at 133, 487 S.E.2d at 857.
Similarly, the fact that no site plan had been filed, as
required by the landowner's special use permit, was
determinative in Trollingwood Partnership and we held that no
vesting had occurred in the preexisting zoning. The landowner's
property was zoned for trailer park use which it was developing
in sections. The undeveloped parcel for which vested rights
were asserted was subject to a special use permit which
9
contained a condition precedent that a site plan be filed. The
landowner had not filed a site plan when the zoning changed to
prohibit a trailer park on the disputed property. We found that
no vesting had occurred because the required governmental act,
approval of the site plan had not occurred. 248 Va. at 115-16,
445 S.E.2d at 153.
While these cases involved general plans of development, as
opposed to a detailed ready-to-build plan, that factor was not
the basis of the Court's decisions. In Southside Inv., Inc.,
Amherst County Board of Zoning Appeals and Trollingwood
Partnership we found that the respective property owners had no
vested rights because no significant government act (as our
precedent then defined it) had taken place since the subject
land lacked site plan approval, a special use permit, or
something similar. The current statute's reference to
"development of a specific project" is nowhere mentioned in
these decisions and this concept was not discussed in our
holdings. Any distinction due to the general versus the
specific nature of a landowner's development plans was unrelated
to whether a significant governmental act, such as approval of a
site plan, had occurred.
Nonetheless, the City argues that a "specific project" can
only be found under Code § 15.2-2307 when "they would have filed
site plans for the entire property." No such requirement exists
10
in the statute and, for the reasons just enunciated, neither
does it derive from our prior precedent.
The record reflects that the BZA and trial court were
cognizant that the object of the 1988 rezoning was a specific
tract known as King's Landing; it was not a general rezoning.
The project was restricted to PD-H zoning and that approval
specifically limited the number of residential units. Further,
through the 1988 and 1994 master land use plans, the highway
entrances, general roadways, and recreation areas were
established, as well as designated residential and commercial
use sections. The record supports the implied conclusion of the
trial court and BZA that the rezoning was directed to a specific
project.
Code § 15.2-2307 now specifically recognizes the type of
zoning act taken by the City in 1988 as a significant
affirmative governmental act creating a deemed vesting of land
use rights. The record reflects that the zoning was
specifically directed to an identifiable property and project.
Thus, there was credible evidence in the record to support the
trial court and BZA conclusions that the statutory requisite of
"a significant affirmative governmental act . . . allowing
development of a specific project" occurred. Therefore, we do
not find the trial court's determination plainly wrong.
B. Substantial Expenses in Diligent Pursuit
11
The City also assigns error to the trial court's
determination that Etheridge was "in diligent pursuit" of the
King's Landing project and incurred "substantial expenses" in
that diligent pursuit. We find that the record supports the
trial court's judgment and therefore do not find it plainly
wrong.
(i) Diligent Pursuit
The City contends Etheridge cannot claim diligence because
it did practically nothing regarding the project from the 1988
rezoning until the 1994 rezoning and approval of the amended
master land use plan. Had the UDO been adopted in 1994, instead
of 1999, the City's argument would likely prevail. However,
Etheridge's lack of diligence before 1994 is not dispositive
since the BZA and trial court could consider all of Etheridge's
development activity prior to the UDO zoning change. In that
context, the trial court and BZA correctly found that Etheridge
was reasonably diligent.
Whether due to the adjoining landowner's financial
problems, general economic conditions, or whatever reason,
Etheridge did not begin measurable steps to develop King's
Landing until 1993, when its engineer evaluated the development
options. From that point until adoption of the UDO, Etheridge
undertook a series of activities to develop the whole Property,
as the trial court's letter opinion reflects.
12
The record shows a train of regular, although not
constant, events occurring in the period of some [14]
years between the purchase of the property and the
adoption of the UDO. I am unable to find that the
evidence fails to support the conclusion of the BZA
that Etheridge Manor exercised a "good faith,
reasonable effort" toward the full development of the
whole tract of land. I cannot find that the BZA was
plainly wrong.
In reliance on the 1988 rezoning of the Property to PD-H,
Etheridge undertook the 1993 engineering analysis and commenced
development activities with the 1994 rezoning and amended master
land use plan. The City approved the revised plan and rezoned
the Property from high-density residential to an overall density
of only four units per acre. Since, at that point, Etheridge
was proceeding alone, it was necessary to reestablish the
demarcation of the development from the land of the adjoining
landowner through a survey and a re-subdivision plat which were
filed and approved in 1995. Etheridge also completed a
comprehensive traffic impact analysis for development of the
entire Property in 1994, which was reviewed by the City and
later approved by VDOT. In 1997, Etheridge deeded 1.129 acres
to VDOT, without compensation, for road improvements to access
the Property.
Etheridge undertook to develop a plan for recreational use,
which the City approved in 1996, to dedicate certain
recreational areas within the Property. Etheridge also
developed the entrance phase, Planter's Station, with the
13
preliminary subdivision plats filed in 1996 and approved by the
City. The final Planter's Station Subdivision plat, which
included sewer, water, and storm drainage tied to development of
the whole Property, was timely filed on April 17, 1998, but
never acted upon by the City prior to the adoption of the UDO a
year and a half later. Obviously, Etheridge was at a distinct
disadvantage in efforts to proceed with development of the
Remainder until the City approved the entrance phase of the
subdivision.
Since the record reflects credible evidence sustaining the
trial court's finding that Etheridge diligently pursued
development of the entire Project (including the Remainder), we
cannot say its decision was plainly wrong.
(ii) Substantial Expenses
The City does not contest the uncontroverted evidence in
the record that Etheridge expended over $158,000 between 1993
and 1998 toward development of the Property. However, the City
argues that most of these expenditures were limited to the
development of Planter's Station and that there is no nexus
between those expenses and the development of the Remainder.
Therefore, the City maintains the expenditures were not
substantial and could not vest land use rights in the PD-H
zoning in the Remainder.
14
The trial court made specific findings, both in its letter
opinion and order, that Etheridge's expenditures for the traffic
study, conveyance to VDOT, the recreation plan, the engineering
with regard to certain aspects of the Planter's Station plats,
and the master land use plan were for the development of the
entire Property, not exclusively for Planter's Station or the
10-acre commercial area. The record reflects credible evidence
to support this finding.
In particular, the engineer for Etheridge opined, without
contradiction, that the actions undertaken by Etheridge were for
the benefit of the entire Property.
The subdivision plats and construction drawings
depicting Sections 1, 2 and 3 [Planter's Station] are
designed to serve as part of the entire 480-unit
project, and their scope greatly exceeds the needs of
the initial area to be developed. The pump station is
designed to serve the entire project. The BMP is
larger than required for the initial sections, and is
designed to tie into a larger system. The storm
drainage system is calculated to handle more storm
draining than that generated by the initial area. The
interior road system is designed to serve traffic
needs exceeding those generated by the initial area.
The City has now changed the zoning on the
balance of Etheridge Manor's residential property to
Commerce Park, but has left Sections 1, 2 and 3 zoned
PD-H. This makes no sense, since Sections 1, 2 and 3,
standing alone, cannot be developed in an economically
feasible manner. Because of the rezoning that has
occurred, the infrastructure for Sections 1, 2 and 3
is overdesigned for those sections alone. The design
and layout of Sections 1, 2 and 3 were totally
dependent on the subsequent residential development
contemplated by the development plan.
15
The City's counsel conceded as much at trial: "Admittedly,
the infrastructure for those three areas (Planter's Station) was
built big enough so that they could eventually hook it up to the
full property when built out."
The record reflects credible evidence that Etheridge's
expenditures were for development of the Property as a whole and
verifies the determinations of the trial court and the BZA were
not plainly wrong. Accordingly, we find no error in the trial
court's judgment.
IV. CONCLUSION
The record reflects credible evidence to support the
findings of the BZA and the trial court that PD-H land use
rights vested in Etheridge as to the Remainder. We find that
neither the trial court nor the BZA was plainly wrong in
determining that the PD-H zoning was a significant affirmative
governmental act and that Etheridge incurred significant
16
expenditures in diligent pursuit of the King's Landing project.
Finding no error, we will affirm the trial court's judgment. 3
Affirmed.
JUSTICE KEENAN, with whom CHIEF JUSTICE HASSELL and JUSTICE
KOONTZ join, concurring in part, dissenting in part.
Contrary to the language of Code § 15.2-2307, the
majority's holding permits the creation of a vested property
right based on general conceptual land use plans accompanying a
rezoning, rather than on evidence of a "specific project" as
required by the statute. In addition, contrary to the statutory
requirement that a landowner also act in "diligent pursuit" of a
"specific project" to secure a vested property right, the
majority allows actions taken five or more years after the
relevant governmental act to constitute such "diligent pursuit."
These holdings effectively alter the statute and permit the
establishment of vested rights that do not comply with the terms
and conditions provided by the General Assembly in Code § 15.2-
3
The City also assigned error claiming the trial court
erred in finding that approval of the preliminary plat for
Planter's Station created vested rights in Etheridge as to the
Remainder. We do not read the trial court's decision to make
such a holding. Neither the trial court's letter opinion nor
its order indicated any causative nexus between approval of the
plat for Planter's Station and the vesting of rights in the
Remainder. The trial court noted the vested rights of Etheridge
in Planter's Station were the same vested rights it acquired in
the Remainder, but there was no cause and effect relationship.
Accordingly, we do not address this assignment of error as it
was based on the City's erroneous reading of the trial court's
decision.
17
2307. Therefore, I respectfully dissent from that part of the
majority's opinion affirming Etheridge's vested rights in the
portion of the 154-acre tract not covered by the Planter's
Station subdivision plat.
Code § 15.2-2307 provides, in relevant part that:
"[A] landowners' 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 the 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 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; (iii) the
governing body or board of zoning appeals has granted
a special exception or use permit with conditions;
(iv) the board of zoning appeals has approved a
variance; (v) the governing body or its designated
agent has approved a preliminary subdivision plat,
site plan or plan of development for the landowner's
property and the applicant diligently pursues approval
of the final plat or plan within a reasonable period
of time under the circumstances; or (vi) the governing
body or its designated agent has approved a final
subdivision plat, site plan or plan of development for
the landowner's property.
In the present case, the trial court determined that the
1988 rezoning was a "significant governmental act," within the
18
meaning of Code § 15.2-2307, and held that Etheridge took
sufficient steps to secure a vested right in the entire property
by expending funds relative to the development of that "entire
tract." I disagree with the majority's analysis, which largely
adopts the trial court's reasoning, for three basic reasons.
First, the majority states that the 1988 rezoning was
"specifically directed" to "an identifiable property and
project" but does not explain how the rezoning "allow[ed]
development of a specific project," as required by the language
of Code § 15.2-2307. Instead, the majority effectively
concludes that this statutory requirement was met because the
1988 rezoning involved a particular tract of land, which was
depicted in conceptual land use plans.
The 1988 rezoning, however, did not allow development of
any specific project, but merely changed the zoning of
Etheridge's property from "Rural Residential" to "PD-H."
Moreover, this rezoning, on which the majority relies to
establish a vested right under Code § 15.2-2307(ii), was not a
"rezoning for a specific use or density" within the meaning of
that provision because the rezoning did not mandate any
particular use of the property and did not limit development to
any specific density. Instead, the 1988 rezoning permitted a
wide variety of densities, as illustrated by the 1988 Master
19
Plan (the 1988 plan). * Further, the 1988 plan showed only
general locations for various basic types of development.
The General Assembly's intended meaning of the term
"specific project" is illustrated in the second paragraph of
Code § 15.2-2307, which provides several examples of actions
that "are deemed to be significant affirmative governmental acts
allowing development of a specific project." On brief and at
oral argument in this appeal, Etheridge relied on category (v)
of the second paragraph, with its reference to a "plan of
development," in support of its vested rights contention.
Etheridge asserted that the 1994 Conceptual Land Use Plan (the
1994 plan), which showed only general use categories for the
property, was a "plan of development" within the meaning of
category (v). Thus, Etheridge argued that the 1988 rezoning and
adoption of the 1994 plan satisfied the statutory requirement of
demonstrating "a significant affirmative governmental act . . .
allowing development of a specific project."
The majority does not address category (v), which is
central to an analysis of this vested rights claim. With
respect to category (v), I would hold that neither the 1988 nor
the 1994 plan qualifies as a "plan of development" under that
*
See the attached copy of the 1988 plan.
20
category for purposes of demonstrating the existence of a
"specific project."
Under the terms of category (v), before such a plan can be
considered evidence of a "specific project," the landowner must
have "diligently pursue[d] approval of the final plat or plan
within a reasonable period of time under the circumstances." By
their very nature, the 1988 and 1994 plans were conceptual in
nature and were not subject to further approval as a "final plat
or plan" detailing the manner in which the property would
actually be developed.
The conceptual nature of these plans was emphasized by
Etheridge's planning consultant in an exhibit received in
evidence in this case. In that document, the consultant
observed that the "[l]and uses proposed for the development will
be generally located as indicated on the [1988] Plan." Thus,
Etheridge's own evidence demonstrates that the 1988 and 1994
plans cannot qualify as a "plan of development" creating a
"specific project," within the meaning of category (v) in Code
§ 15.2-2307.
The only evidence of a "specific project" in the present
record is the preliminary subdivision plat for Planter's
Station, which relates to only a portion of Etheridge's entire
tract. Manifestly, this plat cannot establish the existence of
a "specific project" for the remaining portion of the tract not
21
covered by the plat. Thus, I would conclude that although the
1988 rezoning was a significant affirmative governmental act
within the meaning of Code § 15.2-2307, that rezoning was not an
act that "allow[ed] development of a specific project"
encompassing Etheridge's entire property.
My second disagreement with the majority's analysis is that
it effectively accords Etheridge's entire tract the status of a
"specific project" simply because certain actions taken by
Etheridge ultimately could benefit the entire tract. Any such
benefit to the entire tract is purely conjectural, however,
because no specific plan has been approved for its development.
Given the absence of any specific plan of development for the
entire site, development beyond the boundaries of the
preliminary subdivision plat may not ever occur in any manner
now being evaluated by Etheridge. I cannot conclude that the
General Assembly intended that the term "specific project" in
Code § 15.2-2307 be applied in this manner to allow the creation
of a vested right that is so wholly indefinite in both time and
scope.
My third disagreement with the majority's analysis is that
the vested right accorded Etheridge effectively negates the
statutory requirement that any such right be based on the
"diligent pursuit" of a "specific project." In applying the
term "diligent pursuit," I would assign the word "diligent" its
22
usual and common meaning. Fritts v. Carolinas Cement Co., 262
Va. 401, 405, 551 S.E.2d 336, 339 (2001); Murphy v. Norfolk
Cmty. Servs. Bd., 260 Va. 334, 339, 533 S.E.2d 922, 925 (2000).
That meaning imparts "steady, earnest, attentive, and energetic
application and effort." See Webster's Third New International
Dictionary 633 (1993). The uncontested facts of record show
that Etheridge did not begin to make any application or effort
in pursuit of any project until five years after the 1988
rezoning. Thus, if Etheridge's actions in 1993 and thereafter
are sufficient to satisfy the statutory term "diligent pursuit,"
this term will place no practical or meaningful restriction on
the acquisition of vested rights, in contravention of the clear
language of Code § 15.2-2307.
Accordingly, I would hold that the trial court's
application of Code § 15.2-2307 was plainly wrong, and that
Etheridge did not have a vested right in the portion of its
property not covered by the Planter's Station preliminary
subdivision plat. I would enter final judgment reversing this
part of the trial court's judgment, and affirming the part of
the court's judgment holding that Etheridge had vested rights in
the portion of its property included in the Planter's Station
subdivision plat.
23
24