Zoning – Vested Rights – Verification Letter – Significant Act

A zoning administrator’s zoning classification letter stating that a property owner’s proposed use of a parcel to expand its personal security training facility would constitute a “school” permitted under the current zoning classification, but the classification was subject to change, was not a “significant affirmative governmental act” that gave the owner a vested right to build the school, and the Supreme Court of Virginia reverses the decision granting the vested right.

Appellee Crucible Inc .operates a security training facility in Stafford County, and it sought to acquire land in order to expand its training facility. It primarily trains government agents and employees in “individual protective measures,” such as firearms training, unarmed combative defensive tactics, surveillance detection and anti-terrorist evasive driving. By letter of March 3, 2004, Crucible requested a zoning verification for certain property zoned A-1 agricultural, and the zoning verification request included an inquiry into whether the facilities that Crucible proposed to erect on the property met the definition of a “school” under the zoning ordinance; schools could be constructed in A-1 zones on a “by right” basis, i.e., without discretionary approval by the county.

On May 11, 2004, the zoning administrator sent a “Zoning Verification” letter to Crucible stating that the facility would be classified as a “school” by definition in the county zoning ordinance, and that verification is valid as of May 11, 2004, and is subject to change. On July 26, 2005, Crucible purchased the property for $2.25 million.

On Aug. 24, 2005, the board of supervisors adopted a zoning ordinance that requires a conditional use permit for the location of a school in an A-1 zoning district. After the adoption of Ordinance O05-37, Crucible, without requesting a vested rights determination from the zoning administrator, requested a declaratory judgment that it had a vested right pursuant to Va. Code § 15.2-2307 to develop a school on its property on a “by right” basis.

The circuit court held that Crucible did not have to first seek a vested rights determination and that the zoning verification letter constituted a “significant affirmative governmental act” so that Crucible had a vested right to develop a school on its property on a “by right” basis.

The circuit court did not err in allowing Crucible to seek a vested rights determination without first obtaining such a determination from the zoning administrator.

Statements of a zoning board’s general support of a plan and informal assurances of future approval are not enough to constitute a significant affirmative governmental act. According to the plain meaning of the language used in the May 11, 2004 zoning verification letter, 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 count zoning ordinance in place on the date the request was made. The zoning administrator specifically stated 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.

We affirm the portion of the circuit court judgment allowing the court to make a vested rights determination, but reverse the judgment that it had a vested right in a land use, and enter final judgment for the board.

Affirmed in part, reversed in part and final judgment for the board.

Board of Supervisors of Stafford County v. Crucible Inc. (Goodwyn, J.) No. 081743, June 4, 2009; Stafford County Cir.Ct. (Bellows) Sharon E. .Pandak, Brandi A. Law for appellants; H. Clark Leming, John E. Tyler Jr., Grayson P. Hanes for appellee; Phyllis C. Katz, L. Lee Byrd, Annemarie D. Cleary, Ann N. Cosby for appellant amicus curiae Local Gov’t Attys of Va. Inc.; Arthur E. Schmalz, Jill M. Dennis for appellee amici curiae Va. Chamber of Commerce, Home Builders Ass’n of Va. VLW 009-6-071, 12 pp.