Zoning Vesting according to Ollie: “Well, here’s a another nice mess you’ve gotten me into.” – from “Another Fine Mess” (1930)

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

 

Laurel and Hardy could not have put it better when it comes to the contentious business of vesting in zoning. Yet another decision shows what a mess can result from carelessness on all sides.

  

On Thursday, the Virginia Supreme Court handed down a vested rights case worth reading. Click here for the decision. 

 

The lessons learned (as if we didn’t know them already) are:

1. Local governments should have good rules and procedures for staff sign-offs of zoning opinions and approvals.
2. Developers shouldn’t always take a staff letter as the last word on whether the use is permitted and vested.
3. Everyone should be reading the statutes.

In this case, an outfit known a Crucible, Inc. has a school of sorts — a “security training facility” — in Stafford County, Virginia, where it “primarily trains government agents and employees in ‘individual protective measures,’ including ‘firearms training,’ ‘unarmed combative defensive tactics,’ ‘surveillance detection,’ and ‘anti-terrorist evasive driving.’” This does not sound like “Little Miss Bo Peep’s Pre-School” but they presented themselves as a school nevertheless.

Crucible had a contract for $2.25 million to buy more land to expand its facility. The zoning administrator, the planning staff and Crucible staff met and Crucible presented information on why its operation was a school, permitted as of right, under the regulations. The county officials agreed and the zoning administrator issued a “Zoning Verification” letter. Crucible closed on the additional land.

A month later – funny how these things happen right after one another – the Board of Supervisors amended the zoning to require a conditional use permit for any school in the A-1 district – whether it trained pre-schoolers in finger-painting or federal agents in anti-terrorist evasive driving.

By the way, here’s their driving facility from the website http://www.cruciblesecurity.com/

 

 

And here is a shot, also from Crucible’s website, of the main training facility.

 

The county required Crucible to request a vested rights determination, but Crucible went right to court. The trial court found that Crucible had a vested right.

 

The Virginia Supreme Court found otherwise, holding that none of the six possible statutory affirmative governmental actions which would support vesting had occurred. And even though the statute was expressly “without limitation” the court found that the Zoning Verification letter was not a significant affirmative governmental act. The court said: “According to the plain meaning of the language used in the zoning verification, the zoning administrator did not affirmatively approve the project. There was no commitment contained within the zoning verification. The zoning administrator simply answered the question concerning the classification of Crucible’s project according to the Stafford County Zoning Ordinance in place on the date the request was made. The zoning administrator specifically stated that the verification was subject to change. A statement of zoning classification, such as contained in the zoning verification letter, is not a significant affirmative governmental act.”

Sharon Pandak, the county’s lawyer, said after the decision: “All over the state, developers and landowners call their zoning administrators and ask ‘Can I do x or y?’ That does not indicate any approval by the government itself. It is excellent that the Supreme Court has determined that’s not enough.”  “Stafford prevails over Crucible” 6/6/09 Fredericksburg.com.

When it comes to vesting, everyone — the municipality, the neighbors, the applicant — all must take special care in making their intentions and commitments clear.

I wonder if they have recess at the Crucible? “Show and Tell” must really be something.  And where do they go on field trips?  Think about it — a school zone where guns are required…

John Delaney wrote an article in 2000 which is a comprehensive overview of vesting. Click here for a copy.

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Posted in Land Use
Tags: case, decision, Dwight, Land, Merriam, Use, vesting, virginia, zoning