HomeMy WebLinkAboutAP201300004 Correspondence 2013-06-13 (2) 'quoit
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County of Albemarle
Department of Community Development
Memorandum
To: Members, Albemarle County Board of Zoning Appeals
From: Amelia McCulley, Zoning Administrator
Date: July 29, 2013
Subject: AP 2013-04 New Hope Church Initial Site Plan
Charles M. Boldt has filed an appeal of the County's approval of the New Hope Church initial site
plan. Mr. Boldt is not the site plan applicant, but an adjacent owner. As the County Attorney notes,
third parties lack the right to appeal the approval of site plans.
Before Mr. Boldt incurs the expense of advertising a full public hearing, this matter is being brought
before the Board on the narrow issue of jurisdiction. Since Mr. Boldt's appeal has not yet been
advertised for public hearing, the sole decision for the Board today is whether the Board has
jurisdiction to hear a third-party appeal of a site plan approval. Again, as the County Attorney notes,
the County's position is that third parties lack standing to make such appeals, and the BZA lacks
jurisdiction to hear such appeals. Therefore, staff recommends that the BZA not accept this third-
party appeal.
COUNTY OF ALBEMARLE
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MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Andrew H. Herrick, Senior Assistant County Attorney
DATE: July 25, 2013
RE: AP 2013-04 New Hope Church Initial Site Plan
On behalf of the County, the County Attorney's Office submits the following summary of
the issues associated with Charles M. Boldt's attempt to appeal the County's approval of the initial
site plan for the proposed New Hope Church.
1. Summary of Facts
New Hope Church applied for a special use permit to build a new church facility at the
intersection of Dickerson Road and Dickerson Lane. On July 11, 2012, the Board of Supervisors
unanimously approved SP-2010-000.46, allowing for construction of the church facility, subject to
six conditions. By letter of May 16, 2013, the County granted administrative approval to SDP-
2013-008, the initial site plan for the Church. By submission of June 12, 2013, Mr. Boldt, an
adjacent property owner, filed "an appeal of the Initial Site Plan approval."
2. The BZA's Jurisdiction is Limited to ZoningAppeals
The Board of Zoning Appeals (BZA) "is a creature of statute possessing only those powers
expressly conferred upon it." Lake George Corp. v. Standing; 211 Va. 733, 735, 180 S.E.2d 522,
523 (1971). Virginia Code § 15.2-2309(1) enables the Board of Zoning Appeals (BZA) to "hear
and decide appeals from any order, requirement, decision or determination made by an
administrative officer in the administration or enforcement of this article or of and ordinance
adopted pursuant thereto. [emphasis added]" The "article" referred to in this provision is Article 7
of Chapter 22 of Title 15.2 of the Code of Virginia, relating to zoning specifically.
By contrast, County approval of initial site plans is governed by County Code § 18-32.4.2,
which in turn derives from die enabling authority of Virginia Code § 152-2260(E). (Both
provisions will be discussed in greater length below.) This provision of state law governing site plan
appeals falls outside Article 7 of Chapter 22 of Title 15.2 of the Code of 17rginia, and therefore
outside the jurisdiction allowed the BZA under Vim]. Code§ 15.2-2309(1), cited above. Rather,
I7rginia Code § 15.2-2260(E) is found in Article 6 of Chapter 22 of Title 15.2 of the Code of
Virginia, which governs land subdivision and development specifically, and not zoning.
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In short, appeals pertaining to subdivision plats and site plans are not, and cannot be made
to the BZA. Virginia Code §§ 15.2-2309, 15-2259 and 15.2-2260. The BZA has no authority to
consider a third-party challenge to an approved initial site plan.
3. Only the Owner/Developer Has Standing to Appeal a Site Plan Approval
Even if the BZA had jurisdiction to hear appeals of site plan approvals, Mr. Boldt, as a
third party, lacks the standing to bring such an appeal. As noted, County Code 5 18-32.4.2
governs County approval of initial site plans. Specifically, County Code § 18-32.4.2.6 allows for
the following appeals of initial site plans (and no other):
"The disapproval of an initial site plan may be appealed as follows:
a. Appeal to commission and board of supervisors. If an initial site plan is
disapproved by the agent, or is approved with conditions that the developer objects
to, the developer at its sole option may appeal the decision of the agent to the
commission and, if the commission disapproves the initial site plan or affirms the
objectionable conditions, to die board of supervisors. The appeal shall be in writing
and be filed with the agent within ten (10) days after the date of the decision by the
agent or by the commission, as the case may be. The action by the commission and
the board shall comply with subsections 32.4.2.5(c), (d) and (e), as applicable.
b.Judicial review. If an initial site plan is disapproved by the agent, the commission
or the board of supervisors, the developer may appeal the disapproval to the circuit
court as provided in Virginia Code 5 15.2-2260(E). No developer is required to
appeal the disapproval of die plan under subsection (a) before appealing it to the
circuit court. [emphasis added]"
Notably, no right of appeal is provided for any party other than die developer. This
provision is consistent with die state enabling authority on initial site plans found in Virginia Code
§ 15.2-2260(E):
"If a commission or other agent disapproves a preliminary subdivision plat and the
subdivider contends that the disapproval was not properly based on the ordinance
applicable thereto, or was arbitrary or capricious, he may appeal to the circuit court having
jurisdiction of such land and die court shall hear and determine die case as soon as may be,
provided that his appeal is filed with the circuit court within 60 days of the written
disapproval by die commission or other agent. [emphasis added]"
As noted by Robert Jackson Allen in Nothing in My Back Yard? The Case Against
EApanding Third-Party Rights to Challenge Local Land Use Decisions in Virginia, 39 Envth. L.
Rep. News & Analysis 10110 (2009), the appeal procedures for zoning decisions on the one hand
and subdivisions and site plans on die other, are dramatically different. While zoning appeals may
be made by"any person aggrieved," only die owner(s) may appeal subdivision plats and site plans.
4. The Supreme Court Has Consistently Rejected Third-Party Non-Zoning Appeals
The Supreme Court of Virginia has repeatedly and conclusively ruled against third-party
appeals. In Shilling v. Jimenez, 268 Va. 202, 205, 597 S.E.2d 206, 208 (2004), adjacent
landowners challenged a family subdivision in Loudoun County by filing a bill of complaint in die
circuit court against die subdividers and their lenders. The issue on appeal was "whether a
landowner, aggrieved by die local governing body's approval of a subdivision of neighboring lands,
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may attack that approval indirectly by suit against the subdividers and their successors in title." The
court's 2004 ruling affirmed the trial court and held that the adjacent landowners possessed no
right-of-action: "Nowhere in these enabling acts has the General Assembly either conferred upon a
third party, a stranger to the subdivision approval process, a right to bring a suit to enforce the local
ordinance or expressly empowered the local governing body to grant such a right."'
In Miller v. Highland Counl}; 274 Va. 355, 650 S.E.2d 532 (2007), adjacent landowners
filed actions for declaratory judgment to contest the planning commission's determination that a
conditional use permit allowing construction of wind turbines was in substantial accord with the
comprehensive plan. One of the issues in the consolidated appeal to the Virginia Supreme Court
was whether a third-party declaratory judgment action existed under Virginia Code §15.2-2232 in
light of the court's ruling in Shilling. The court acknowledged its prior decisions that the
"declaratory judgment statutes do not create or alter any substantive rights" and held: "Under the
plain language of these statutory provisions [§15.2-2232], only the owner of the property at issue,
or the owner's agent, may appeal to the governing body from a `substantial accord' determination
of the planning commission. Notably, the statute does not provide third parties with a right of
appeal from such a detennination."2
Most recently, in Logy- v City Council of the City of Roanoke, 275 Va. 483, 488-90, 659
S.E.2d 296 (2008), the Virginia Supreme Court had another opportunity to address the question of
"whether neighboring landowners may seek a declaratory judgment regarding a locality's
application of a subdivision ordinance." In that case, a developer obtained approval of a
subdivision plat and nearby homeowners who opposed the housing development filed a bill of
complaint for declaratory judgment to challenge the subdivision plat approval. The Virginia
Supreme Court affirmed its previous holdings in Shilling and Miller. With respect to the third-
party appeal, the court ruled that "the declaratory judgment statutes do not create such rights, and
in the absence of statutory authority granting her a right of appeal to actions taken under the
Subdivision Ordinance, Logan remained a stranger to the subdivision approval process and was
not authorized to challenge Townsend's actions under that Ordinance." The court's ruling makes
it clear that third parties such as neighboring landowners have no right of action to challenge land
use decisions unless there is a statute authorizing the challenge such as the procedures set forth in
the Virginia Code for zoning appeals.'
5. Sound Policy Favors a Limited Right of Appeal
It is no accident that state law provides a different and more limited right of appeal of site
plan approvals. As Mr.Jackson notes:
"Subdivision actions are likewise inappropriate for expanded third-party litigation.
Administration of the subdivision ordinance address development details in the form of
subdivision plats and site plans, which can be intricate and technical. . . . Ultimately, if the
applicant complies with the standards of the local ordinance and the Virginia Code, the
plans are approved. Most deficiencies can be cured by a resubmission with changes or
corrections. It is in the interest of local government efficiency, for the subdivision agent and
' See Robert Jackson Allen,Nothing in My Back Yard?The Case,48''ainst Expanding Third-Party Rights to Challenge
Local Land t Ise Decisions in Virginia,39 Envtl.L. Rep.News&Analysis 10110, 10115 (2009).
See id.
3 See id.
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staff to carry out administration and enforcement of the subdivision ordinance without
interference from third parties."'
Mr.Jackson concludes:
"Expanding third-party rights to challenge non-zoning land use decisions would be a
particularly slippery slope as it would open the door for NIMBY lawsuits at virtually every
stage of land development. There would be significant potential for abuse by feuding
neighbors seeking to fight every approval their neighbor sought. These appealable
challenges would encompass not only zoning permits, but exceptions or variances from the
subdivision ordinance standards and conceivably such administrative approvals as
boundary line adjustments. The efficiency of local government would be severely
compromised if every land use decision resulted in protracted third-party litigation.f5
5. Conclusion
State law, County ordinance, and Virginia Supreme Court rulings clearly and consistently
preclude third parties' from appealing site plan approvals. Because Mr. Boldt is a third-party, not
an owner of the subject property, he lacks standing to appeal its site plan approval. Perhaps more
importantly, the BZA lacks jurisdiction even to hear any appeal not derived from the zoning article
(Article 7 of Chapter 22 of Title 15.2) of the Code of Virginia. Therefore, the BZA must decline
to hear this attempted appeal of a site plan approval.
Cc: Amelia McCulley, Zoning Administrator
4 Id. at 10116.
5 Id. at 10116-17
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