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CITY OF SUFFOLK ex rel., HERBERT v. BOARD OF ZONING APPEALS FOR THE CITY OF SUFFOLK, et al.




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Supreme Court of Virginia.


CITY OF SUFFOLK ex
rel., HERBERT

v.

BOARD OF ZONING
APPEALS FOR THE CITY OF SUFFOLK, et al.


PRESENT: ALL THE JUSTICES

Record No. 021981

THE CITY OF SUFFOLK EX REL.

STEVE HERBERT, ZONING ADMINISTRATOR

FOR THE CITY OF SUFFOLK, ET AL.

 

v.

 

BOARD OF ZONING APPEALS FOR

THE CITY OF SUFFOLK, ET AL.

OPINION BY JUSTICE G. STEVEN AGEE

JUNE 6, 2003

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]

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.

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 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

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.

 

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.

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 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 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 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

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.

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 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.

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.

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 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 ? 15.2-2307. 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 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 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 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 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 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.

 

 

FOOTNOTES:

[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]Planter’s
Station was to be an entrance to King’s Landing and the first section to be
built out.

 

[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.

*See the attached copy of the 1988 plan.

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