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BOARD OF ZONING APPEALS OF BLAND COUNTY v. CASELIN SYSTEMS, INC. (59758)


BOARD OF ZONING APPEALS
OF BLAND COUNTY

v.

CASELIN SYSTEMS, INC.


June 5, 1998

Record No. 972060

BOARD OF ZONING APPEALS OF BLAND COUNTY

v.

CASELIN SYSTEMS, INC.

OPINION BY SENIOR JUSTICE HENRY H. WHITING

FROM THE CIRCUIT COURT OF BLAND COUNTY

J. Colin Campbell, Judge

Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice


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 Sec.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."

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 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 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).

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 "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 Sec.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 Sec.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 Sec.15.1-475(B)(1) (now Code
Sec.15.2-2259) requires that local commissions act on
proposed subdivision plats "officially submitted for
approval." Under Code Sec.15.1-11.02 (now Code
Sec.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 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 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 has
established the other elements required to create its asserted
vested property right.[1]

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.

 

FOOTNOTES:

[1] Additionally, we do not
consider what effect, if any, Code Sec.10.1-1408.1(F) may
have had on this case because the issue was not raised by either
party. Code Sec.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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