Home / Fulltext Opinions / Supreme Court of Virginia / TOWN OF ROCKY MOUNT v. SOUTHSIDE INVESTORS, INC.





June 6, 1997
Record No. 962021





B.A. Davis, III, Judge
Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., Poff, Senior Justice

The sole issue in this appeal is whether a landowner acquired
a vested right to build townhouses on its property before a
zoning ordinance was amended to require a special use permit for
such development.

Southside Investors, Inc. (Southside), initiated an action
against the Town of Rocky Mount, challenging a 1995 amendment to
the Town’s zoning ordinance. The trial court heard the following
evidence in a bench trial.

In July 1985, Southside purchased a 5.5 acre tract of property
located on Herbert Street in the Town of Rocky Mount. About one
month later, Southside obtained a rezoning of the property from
R-1 to R-2, a residential use classification in which townhouses
were a use permitted by right.

After the rezoning, Southside constructed two four-unit
townhouse buildings on the north side of Herbert Street.
Southside extended Herbert Street and installed water and sewer
lines to accommodate these townhouse units, but did not file a
site plan to develop the remaining portion of its parcel located
on the south side of Herbert Street. However, the street
extension and the water and sewer lines were adequate to serve
future development on the south side of the street.

In 1995, the Town amended the zoning ordinance to remove
townhouses as a use permitted by right in an R-2 district and to
allow such development only by special use permit. Christopher
Lee Whitlow, the Town’s planning and zoning administrator,
testified that in an R-2 district, multiple-family developments,
such as townhouse complexes, were not consistent with "the
overall scheme of the [T]own plan."

Southside asserted that it had a vested property right to
construct townhouses on the undeveloped portion of its property.
The trial court agreed, stating that "a conveyance has been
made, substantial expense has been incurred and a hardship will
be worked if further permit applications and delays are mandated
prior to the building of additional townhouse units." The
trial court also observed that Southside already had constructed
townhouses on part of the original 5.5 acre parcel, and that
there had been no evidence Southside had failed to comply with
the Town’s "building and structural requirements."
Therefore, the court ruled that, based on Southside’s vested
property right, the 1995 amendment was null and void as to the
subject parcel.

On appeal, the Town contends that the trial court erred in
holding that Southside had a vested right to construct townhouses
when it did not file a site plan or take any other significant
action to develop the remainder of the tract prior to the 1995
zoning amendment. The Town asserts that Southside cannot rely on
its earlier expenditures for extending the street, water lines,
and sewer capabilities, because these improvements were made to
service the existing townhouses.

In response, Southside argues that the 1985 rezoning of its
original parcel was a significant governmental act which gave
Southside a vested right to construct additional townhouses.
Southside asserts that, in reliance on this governmental act, it
incurred substantial expense by extending Herbert Street and by
installing water and sewer lines. Southside also contends that it
diligently pursued development of its property by obtaining
zoning and building permits for the existing townhouses. We
disagree with Southside’s arguments.

A landowner who asserts a vested property right to a
particular zoning classification must identify a significant
governmental act permitting the landowner the particular use of
its property that otherwise would not be allowed. Holland v.
Board of Supervisors
, 247 Va. 286, 289, 441 S.E.2d 20, 21-22
(1994); Town of Stephens City v. Russell, 241 Va. 160,
164, 399 S.E.2d 814, 816 (1991); Fairfax County v. Cities
, 213 Va. 359, 362, 193 S.E.2d 1, 3 (1972); see
Board of Supervisors v. Trollingwood Partnership, 248 Va.
112, 115-16, 445 S.E.2d 151, 153 (1994). The requirement of a
significant governmental act creates a bright line test that
enables the landowner to determine the point at which it has
acquired the vested right. Holland, 247 Va. at 292, 441
S.E.2d at 23.

The facts in the present case are similar to those in Trollingwood
. There, the landowner asserted that its site
plans for earlier phases of a development were sufficient to
create a vested property right permitting the landowner to expand
its development to an additional portion of the original parcel
for which no site plan had been approved. We held that the
landowners failure to obtain site plan approval for the new
construction before the property was rezoned defeated its vested
rights claim. 248 Va. at 115-16, 445 S.E.2d at 152-53.

Similarly, in Russell, a landowner contended that he
had acquired a vested right in a prior zoning classification
after an amendment effectively reduced the number of apartment
units that he could build on his land. 241 Va. at 162, 399 S.E.2d
at 815. He claimed a vested right to build the number of units
permitted under the former zoning ordinance, despite the fact
that he had failed to obtain the required approval of his
subdivision plat and site plan before the ordinance was amended.
We held that the landowner’s failure to obtain any type of
governmental permit or approval before the ordinance was amended
was fatal to his claim. Id. at 164-65, 399 S.E.2d at 816.

Applying this principle to the present case, we conclude that
Southside does not have a vested right to construct additional
townhouses on its property because it has failed to identify any
significant governmental act approving its proposed development
before the 1995 zoning amendment. We find no merit in Southside=s contention that the 1985
amendment, rezoning the property from the R-1 to R-2
classification, is such a governmental act. That amendment merely
changed zoning classifications and did not authorize any specific
plan for development of the property. A significant governmental
act, as contemplated by our decisions set forth above, authorizes
the specific use to be made of the property, rather than the
general categories of development allowed in a given zoning

Southside’s earlier expenditures for street, water, and sewer
improvements are not relevant to this inquiry, because they were
made in conjunction with the previous townhouse construction. The
fact that some of these improvements may be utilized in future
development of the property does not alter our conclusion, since
they were not approved as part of a site plan or permit for the
undeveloped portion of the property. Thus, we conclude that the
trial court erred in holding that Southside acquired a vested
right under the Town’s 1985 zoning ordinance.

For these reasons, we will reverse the trial court’s judgment
and enter final judgment in favor of the Town.

Reversed and final judgment.