Virginia Lawyers Weekly VA Lawyers Weekly
Where most of the real estate on which appellees wished to build a cluster development was outside of an area designated for water and sewer extensions, appellees must submit their plan for planning commission review.
The statute exempting cluster developments from planning commission review requires the real estate to be “located within” an area designated for water and sewer service.
Land use plan
Stafford County, the appellant in this case, has adopted a land use plan under Code § 15.2-2232. The comprehensive plan shows public facilities, such as sewer and water lines. These are called “features.” The plan also shows an “Urban Services Area” where the county will provide water and sewer service. A developer seeking to build a “feature” not shown on the comprehensive plan must obtain planning commission approval.
Appellees are two developers who own property, 60 percent of which is outside the Urban Services Area. In 2005 and 2007, the developers submitted subdivision plans and asked for sewer extensions to the unserved areas. The planning commission approved “this request” for service extensions but the developers decided not to go forward with their plans.
Cluster developments
Code § 15.2-2286.1 was enacted to encourage high density development. A 2011 amendment stated that a locality “shall not” deny sewer or water extensions as long as the cluster development “is located” in an area designated for such services.
The developers submitted plans that reconfigured their subdivisions into cluster developments. The Stafford County Planning Commission said that the new plans were a significant deviation from the previously approved plans. This would require a new review under Code § 15.2-2232.
The planning commission also said the water and sewer extensions were limited to those approved in 2005 and 2007 “and did not operate to extend the area designated for water and sewer service generally.” The developers sued. The circuit court found in their favor.
First impression
“The case before us presents a matter of first impression. Resolution of the case turns on our construction of the applicable statutes. … The cluster development statute, Code § 15.2-2286.1, does not reference the planning commission review statute, Code § 15.2-2232. Code § 15.2-2232 likewise does not reference Code § 15.2-2286.1.
“‘If apparently conflicting statutes can be harmonized and effect given to both of them, they will be so construed.’ …
“Code § 15.2-2286.1 provides in relevant part that a ‘locality shall not prohibit extension of water or sewer from an adjacent property to a cluster development provided the cluster development is located within an area designated for water and sewer service by a county, city, or town or public service authority.’ Code § 15.2-2286.1(B) (emphasis added).
“In this instance, the two properties at issue are not located within an area designated for water and sewer service. Instead, the properties are partially located within an area designated for water and sewer service.
“In fact, most of the land is actually located outside of the area designated for water and sewer service. ‘Mostly outside of’ is not ‘within.’ By its plain terms, therefore, Code § 15.2-2286.1(B) does not apply. Because Code § 15.2-2286.1(B) does not control, Code § 15.2-2232 is applicable, and it requires the Developers to submit their plans to the planning commission for review.
“The Developers further contend that a review under Code § 15.2-2232 is not required here because Code § 15.2-2232(D) provides a ‘safe harbor’ for a previously approved plan. … As the County notes, however, that statute is permissive, not mandatory. It uses the term ‘may.’ … The import of Code § 15.2-2232(D) is that the County has the discretion to deem certain features consistent with the comprehensive plan. Here, the County exercised its discretion to opt for review of the new proposed developments under Code § 15.2-2232.
Prior approval
“The circuit court also concluded that the Planning Commission’s prior approvals in 2005 and 2007 mean that no further approval was needed. We disagree for several reasons.
“First, prior approvals in 2005 and 2007 did not result in an amendment to the comprehensive plan. …
“Second, although the Planning Commission approved prior projects in 2005 and 2007, those prior approvals were expressly limited to those specific applications and did not by their terms signify approval of different plans filed later.
“Although there clearly were some similarities between the projects in 2005 and 2007 with respect to their impact on the County’s sewer system, the 2012 projects indisputably differed from the ones approved in 2005 and 2007. The 2012 projects involve more lots and even some parcels not included in the 2005 and 2007 proposals.
“Under Code § 15.2-2232, a planning commission is instructed to consider not only a proposed feature’s location, but also its character and extent. The Planning Commission could not have contemplated in 2005 and 2007 the character and extent of the 2012 project.”
Reversed and remanded.
Stafford County, et al. v. D.R. Horton, Inc., et al. Record No. 191662, April 1, 2021 (McCullough). From the Circuit Court of the County of Stafford (Sharp). Jim Harold Guynn Jr. for appellants. John Holland Foote, Matthew Allen Westover, Howard Clark Leming, Peter Rifaat Basanti for appellees. VLW 021-6-019, 10 pp.
