Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
BOARD OF ZONING APPEALS
OF BLAND COUNTY
OPINION BY
v. Record No. 972060 SENIOR JUSTICE HENRY H. WHITING
June 5, 1998
CASELIN SYSTEMS, INC.
FROM THE CIRCUIT COURT OF BLAND COUNTY
J. Colin Campbell, Judge
The issue here is whether a landowner acquired a vested
property right to build and operate its planned medical waste
incinerator before the enactment of a county zoning ordinance
precluding such use.
Michael L. Perkins, the predecessor in interest to CaseLin
Systems, Inc. (CaseLin) and later its president, proposed to
locate a medical waste incinerator in Bland County. In an April
1990 public meeting of the Board of Supervisors of Bland County
(the Board), representatives of the incinerator manufacturer and
state and regional air pollution control agencies, interested
citizens, and Perkins were given an opportunity to participate
in a discussion of his proposal.
During that meeting, the Board resolved to give Perkins a
"letter of support" regarding his proposal. Accordingly, the
Board’s chairman wrote to state and regional waste management
and air pollution agencies in May 1990 that the Board had “voted
to support” the Perkins proposal to locate “a medical waste
incinerator in Bland County.” Also, pursuant to a Board
resolution adopted on May 21, 1990, and the provisions of Code
§ 10.1-1408.1(B)(1), the chairman sent a “certification” to the
State Department of Waste Management that “the location and
operation of a medical waste incinerator in Bland County by Mr.
Michael Perkins is in accordance with all local ordinances.”
Relying on the Board’s actions, CaseLin: (1) purchased land
in December 1990 for the location of its proposed medical waste
incinerator from the Bland County Development Corporation; (2)
contracted with its grantor to build an access road into the
grantor’s recently platted industrial park for CaseLin's use and
that of future lot owners; and (3) applied for the required
state air pollution and waste management agency approvals.
Citing the Board's April 1990 resolution to write a letter of
support, the Board chairman joined in the deed from the Bland
County Development Corporation to CaseLin, purportedly on behalf
of the Board, to “irrevocably acknowledge and confirm
[CaseLin’s] right . . . to use the . . . land . . . as a medical
waste incinerator facility.” After CaseLin purchased the land,
the county administrator wrote letters to the state air
pollution and waste management agencies on February 25, 1991,
stating that “Bland County is anxiously awaiting [their]
completion of [CaseLin’s] permit application reviews."
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However, citizens opposing the proposed incinerator
appeared before the Board on March 25, 1991, and asked for an
additional public hearing on the issue. At two Board-scheduled
public meetings held in the following months and attended by
CaseLin officials, it appeared that a large number of citizens
opposed the plan. Consequently, at the second meeting the Board
voted to "rescind" its April 1990 resolution of support and so
notified the Department of Waste Management, the Air Pollution
Control Board, and other state and regional officials.
Despite the Board’s rescission of its support, CaseLin
continued to actively pursue the required state approvals until
the General Assembly imposed a moratorium on state approval from
April 1992 until December 1993. 1992 Va. Acts, c. 751, p. 1151
(imposition); 1993 Va. Acts, c. 721, p. 1009 (termination).
Although CaseLin resumed its active pursuit of the required
state approvals, it had not secured them by the time the county
enacted its comprehensive zoning ordinance on July 21, 1995,
more than 18 months after the moratorium ended. At that time,
CaseLin’s property was zoned as a part of an agricultural
district in which its incinerator was not a permitted use.
In the 54-month period between its acquisition of the
property in December 1990 and the enactment of the zoning
ordinance in July 1995, CaseLin had a number of surveys
conducted on the property and cleared a minimum amount of brush
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and trees to enable it to establish "a road to go in to do soil
and geo-technical boring." The record does not indicate whether
this work was done before or after the Board withdrew its
support in May 1991.
On July 31, 1995, the county’s zoning administrator
notified CaseLin of the enactment of the zoning ordinance and of
his decision that CaseLin did not have a vested right to use its
property for construction and operation of a medical waste
incinerator. CaseLin appealed that decision, and the subsequent
denial of its applications for permits to build the incinerator,
to the Board of Zoning Appeals (the BZA). Upon the BZA’s
affirmation of both decisions, CaseLin appealed to the circuit
court. The appeals were consolidated by the court and heard on
the records certified by the BZA.
In a written opinion, the court concluded that because
CaseLin had acquired a vested right to use its property in the
operation of a medical waste incinerator prior to the adoption
of the zoning ordinance, the BZA’s decision was “void and of no
effect.” The BZA appeals the circuit court's final judgment
entered in conformity with that opinion.
We begin with a discussion of property rights in relation
to zoning. 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
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anticipated uses of their land since they have no vested
property right in the continuation of the land’s existing zoning
status. Snow v. Amherst County Bd. of Zoning Appeals, 248 Va.
404, 408, 448 S.E.2d 606, 608-09 (1994); Town of Vienna Council
v. Kohler, 218 Va. 966, 976, 244 S.E.2d 542, 548 (1978).
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.
See Holland v. Board of Supervisors, 247 Va. 286, 290-91, 441
S.E.2d 20, 22-23 (1994).
The limited circumstances are outlined in a “bright line
test” which enables such landowners to determine the point at
which they have acquired a vested right. Town of Rocky Mount v.
Southside Investors, Inc., 254 Va. 130, 132, 487 S.E.2d 855, 856
(1997); Holland, 247 Va. at 292, 441 S.E.2d at 23. The test is
as follows:
[A] landowner who seeks to establish a vested property
right in a land use classification must identify a
significant official governmental act that is
manifested by the issuance of a permit or other
approval authorizing the landowner to conduct a use on
his property that otherwise would not have been
allowed. Additionally, and equally important, our
test requires that the landowner establish that he has
diligently pursued the use authorized by the
government permit or approval and incurred substantial
expense in good faith prior to the change in zoning.
Snow, 248 Va. at 407, 448 S.E.2d at 608 (emphasis added).
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The parties do not dispute the evidence as to their
respective actions with relation to the sole issue in this case:
whether those actions were sufficient to vest a property right
in CaseLin. Because the proper application of the test to the
governmental acts in this case poses a question of law, we do
not accord a presumption of correctness to the trial court’s
decision. Board of Supervisors v. Omni Homes, Inc., 253 Va. 59,
65-66, 481 S.E.2d 460, 463, cert. denied, ___ U.S. ___, 118
S.Ct. 58 (1997); see also Town of Rocky Mount, 254 Va. at 133,
487 S.E.2d at 857.
CaseLin has not obtained any governmental permit to build
and operate its incinerator. However, it claims, and the BZA
denies, that the Board’s actions represented "other approval"
and constituted the "significant governmental act" required
under our bright line test.
CaseLin correctly notes on brief that we have never defined
the term “other approval” as used in the test. However, a
review of the other language we have used in establishing the
test, related statutes, and our prior cases gives some
indication of the parameters of the term.
The term "other approval" is used in the context of the
identification of a "significant official governmental act that
is manifested by the issuance of a permit or other approval."
"Significant official governmental act," "issuance," and
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"permit," coupled with the word "or" imply that such "approval"
is of similar character and formality as a "permit."
Furthermore, statutes dealing with related subjects suggest
that sufficient "approval" requires some formality. Code
§ 10.1-1442(C), which envisions a hazardous waste facility
siting agreement with local governing bodies that is "binding
. . . in any court of competent jurisdiction," Code § 10.1-
1438(A)(3), requires such an agreement to be "executed by the
signatures of . . . the chief executive officer of the host
community, who has been so directed by a majority vote of the
local governing body." Code § 15.1-475(B)(1) (now Code § 15.2-
2259) requires that local commissions act on proposed
subdivision plats “officially submitted for approval.” Under
Code § 15.1-11.02 (now Code § 15.2-929), governing bodies are
required to “grant or deny siting approval” of solid waste
facilities within 120 days of their submission.
Our rejection of a number of claims of "approval" within
the meaning of the test gives further evidence that the scope of
an "approval" is limited to an official response to a detailed
request for a use of a particular property that would not
otherwise be allowed under the law. Neither the granting of a
variance nor the previous rezoning of particular property is a
sufficient manifestation of “approval” under the bright line
test. See Snow, 248 Va. at 408, 448 S.E.2d at 608-09 (grant of
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variance); Town of Rocky Mount, 254 Va. at 133, 487 S.E.2d at
857 (zoning classification change). Similarly, the partial
processing of a proposed and filed subdivision plat and site
plan does not constitute the necessary “approval.” Town of
Stephens City v. Russell, 241 Va. 160, 164, 399 S.E.2d 814, 816
(1991). Nor are informal assurances of future approval made by
individual board members and the county administrator sufficient
to demonstrate “approval” under the test. Notestein v. Board of
Supervisors, 240 Va. 146, 151-52, 393 S.E.2d 205, 207-08 (1990).
With these considerations in mind, we consider the actions
of the county asserted by CaseLin as evidence of the required
approval. The April 1990 resolution stated only that the Board
resolved to write a letter of support, not that the Board had
approved a specific proposal regarding the operation of a
medical waste incinerator. Cf. Town of Rocky Mount, 254 Va. at
133, 487 S.E.2d at 857 (significant governmental act authorizes
specific use to be made of the property). Rather, the
resolution was merely a short-lived expression of the Board's
enthusiasm for the project which was later withdrawn in the face
of public criticism.
The letters to the state agencies were simply statements of
the Board’s general support of the plan, not a specific
authorization of the project. Moreover, the administrator’s
certification that the location and operation of the planned
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incinerator were in accordance with the local ordinances was
nothing more than a statement of the facts existing at that
time, not an authorization to proceed. Accordingly, we hold
that the April 1990 resolution and the May 1990 letters of the
Board and county administrator to the state agencies were not an
“approval” of CaseLin’s planned incinerator within the meaning
of the test.
However, CaseLin also contends that such an approval is
contained in the deed to CaseLin which states that the Board
“irrevocably acknowledge[d] and confirm[ed] the right of
[CaseLin] to use the herein described parcel of land . . . as a
medical waste incinerator facility.” We find no merit in this
contention.
Nothing in the Board’s April 1990 resolution of general
support for the project authorized the chairman to bind the
Board to CaseLin's “irrevocabl[e]” right to use the land for the
incinerator. Therefore, the chairman could not bind the Board
as its agent. See Leachman v. Board of Supervisors, 124 Va.
616, 621, 626-27, 98 S.E. 656, 658, 659 (1919) (chairman not
board's agent to sign unauthorized checks).
For these reasons, we conclude that CaseLin failed to
secure governmental approval sufficient to acquire a vested
right to construct and operate a medical waste incinerator. Our
decision makes unnecessary a consideration of whether CaseLin
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has established the other elements required to create its
asserted vested property right. *
Accordingly, we will reverse the judgment of the trial
court and enter final judgment for the Board of Zoning Appeals
of Bland County.
Reversed and final judgment.
*
Additionally, we do not consider what effect, if any, Code
§ 10.1-1408.1(F) may have had on this case because the issue was
not raised by either party. Code § 10.1-1408.1(F) provides:
There shall exist no right to operate a landfill or
other facility for the disposal, treatment or storage of
nonhazardous solid waste or hazardous waste within the
Commonwealth. Permits for solid waste management
facilities shall not be transferable except as authorized
in regulations promulgated by the Board. The issuance of a
permit shall not convey or establish any property rights or
any exclusive privilege, nor shall it authorize any injury
to private property or any invasion of personal rights or
any infringement of federal, state, or local law or
regulation.
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