Jul 23, 2012
Va. Supreme Court upholds vested rights
23 Jul 2012
Posted by Andrew Kantor
The Virginia Supreme Court sided with a Hampton developer that had begun construction on beachfront homes, after a local citizens’ group tried to overturn the development’s zoning.
Construction can continue, said the court, because you can’t give someone a right then take it away after they act on it.
The developer, Parade of Homes, had asked the city of Hampton to zone a section of East Pembroke Avenue for mixed-use properties, intending to build high-end homes there. The zoning process proceeded, and the city granted PoH’s request.
The company began building. A month later, a local citizens’ group petitioned the City Council to revoke the zoning. It did.
But Parade of Homes asked the city for a determination of vested rights — after all, it had started construction once the zoning had been approved. The city agreed and construction continued.
The citizen’s group then asked the Hampton Circuit Court to stop the construction, but the court ruled that the group didn’t have the right to file the suit in the first place, because the time to protest the project was during the zoning hearings, not after.
The citizens’ group then appealed to the Virginia Supreme Court, which agreed to hear the case.
VAR firmly supported the developer for a simple reason: If vested rights were ignored, and zoning rulings could be reversed after construction had begun, why would any developer want to start building anything in Virginia?
The Supreme Court agreed.
First, it ruled that the citizens’ group didn’t have the right to file the challenge in the first place — it’s “authorized role” in the process ended once the city repealed the zoning ordinance. It didn’t have the right to petition the circuit court.
Further — and most importantly — the Supreme Court ruled that the circuit court should have thrown the whole thing out “since the complaint seeks to disturb the vested rights of [Parade of Homes], which are a ‘thing decided’ under Virginia law.”
In a way, this is a significant win for developers. The court made clear that you can’t give someone the right to build, then, after construction starts, take away that right. In a way, though, it’s disappointing that Parade of Homes, which followed the law and did everything it was supposed to do, still had to fight in court for something that should have been obvious from the beginning.