Agenda - Planning Commission - 05/07/2009

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II Ii II II n t",__/, f) \, , ~..-----" u I. I Zoning Bulletin Apri/1O, 2009 I Volume 3 I No.7 by excluding _eight types of businesses that would otherwise have been per- mitted as of right in a GCD. ' On May 9, 2006, the town council approved Llamas' application to re- zone to the Parcel to GCD. Subsequently, in May 200f," the town council approved a zoning amend- ment (the "Amendment") that created a special use category of "Retail Sales, Large Format in the [GCD]." Under the Amendment, all retail sales uses in the GCD that were located in a structure greater than S-O,OO square feet gross floor area required a special use permit. The town's zoning administra- tor, Steve Hundley, thereafter advised Llamas that the Parcel was subject to the restrictions in the Amendment. He said that Llamas "had not acquired a vested right to the unrestricted retail sales use permitted in the [GCD] pri- or to the [Amendment.]" Because'Llamas' proposed structure constituted a "Retail Sales, Large Format" use, it would require a special use permit. Llamas appealed Hundley's determination. They argued that under Vrr- ginia statutory law, Code,~ 15.2-2307, they had a vested right to unrestrict- ed retail use of the Parcel. Under Code ~ 15.2-2307, a landowners' rights in a land use were vested and not affected by a subsequent zoning ordinance amendment when the landowner: (1) obtained or was the beneficiary of a significant affirmative governmental act which remained in effect allowing development of a specific project; (2) relied in good faith on the significant affirmative governmental act; and (3) mcurred extensive obligations or sub- stantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative goverrimental act. The BZAagreed with Llamas and overturned Hundley's determination. Seeking a review of the BZNs decision, the town and town residents each filed a petition for a writ of certiorari in the circuit court. The petitions were consolidated and the cases were tried together. The cir~uit court agreed with Llamas and affirmed the BZNs determina- tion. It ruled that under Code ~ 15.2-2307, because ofthe agreed to proffers, Llamas did have a vested right to unrestricted retail use of the property in ac- cord with the GCD classification that was in effect prior to the Amendment. The town and town ~esidents each appealed. Those appeals were consolidated. DECISION: Revers~d and final judgment. The Supreme Court of Vrrginia concluded that the development proffers, which Llamas and the town had agreed to, did not give Llamas a vested right to unrestriCted retail use of the property in accord with the GCD classifica- tion that ~as in effect prior to the Amendment. In reaching its conclusion, the court emphasized that "the mere reliance on a particular zoning chissification, whether created by ordinance or vari- ance,_ create[ d] no vested tight in the property owner." Here, each of the three specific conditions of Code ~ 15.2-2307 had to be met before Llamas would have a vested right to unrestricted retail use of the property. The first @ 2009 Thomson Reuters I -------------' '3 45