New Tools in the Zoning Game

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As of July 1, 2014, Virginia landowners will have a new tool to use in the zoning game.  On April 6, 2014, Governor McAuliffe signed SB 578 into law.  The bill provides a damages remedy for applicants seeking zoning or subdivision approvals and who are faced with accepting the imposition of unconstitutional conditions as the price for approval.  The new law reflects recent cases in the United States Supreme Court, but also affirms a long standing rule against unconstitutional conditions set by the Virginia Supreme Court in the 1970s and 1980s.

SB 578 will be codified as Virginia Code section 15.2-2208.1.  The law provides the following tools for Virginia landowners seeking zoning or subdivision approvals:

  • Compensatory damages, and potential attorney’s fees and costs, for permits that are granted or denied based upon the imposition of a condition that is unconstitutional under either the United States Constitution or the Virginia Constitution.
  • The Court must send the application back to the local government with instructions to grant a permit or approval without the unconstitutional condition.
  • Where an applicant proves the condition is unconstitutional and objected in writing to the condition before the application was granted or denied, the court must presume that the applicant’s acceptance or refusal to accept the condition was the controlling basis for the local government granting or denying the permit.
  • If the applicant appeals the grant or denial to the Circuit Court in a timely manner, then the court must hear the case “as soon as practical.”  This indicates that unconstitutional conditions cases are required to receive some level of docketing preference by the Virginia court system.

SB 578 goes into effect on July 1, 2014.  While the statute will not provide relief retroactively, landowners with applications in the pipeline currently or who are readying their applications for filing stand to receive the benefits of this new tool.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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