16.2 Enabling Legislation

• Library: Real Estate Transactions in Virginia (Virginia CLE) (2019 Ed.)

16.2 ENABLING LEGISLATION

16.201 General Nature of Zoning. The authority to zone property, to regulate uses within those zones, and to plan comprehensively for future uses of land is among the most significant of local government powers. Zoning decisions can, as can virtually no other exercise of local government civil law power, substantially and dramatically affect the use and value of property and the relationships of the major parties in the land use equation: the locality, the community, and the landowner or developer.

The processes of zoning and planning have grown more sophisticated and complex throughout Virginia, from rural areas to urban, as the courts and the General Assembly have continued to change the rules to reflect contemporary pressures. Moreover, the regulation of land use is no longer entirely local. While federal environmental protection legislation and other federal laws with direct application are generally beyond the scope of this chapter, they are an increasingly complex and important overlay on traditional land use concepts, even in jurisdictions without zoning ordinances, and add legal twists and turns that are often of greater consequence than purely local land use considerations.

Stripped to essentials, the governmental planning and zoning processes that are discussed here are intended to interject into the land use equation values that are often not market driven.

Land use law necessarily occurs in a market-based system. It theoretically strives first to authorize, and then to constrain, the exercise of the public power deemed essential to provide a counterweight to the private market decision-making process that initially determines the use of land. Purposes that are deemed essential to the harmony and quality of life in the community, such as (i) maximizing efficient regional transportation networks; (ii) providing regional stormwater management facilities to control off-site flooding and water pollution; (iii) buffering adjacent and potentially incompatible uses in order to protect older or developing neighborhoods; (iv) protecting the environment; and (v) advancing aesthetic and other social goals legislatively set forth in section 15.2-2283 of the Virginia Code are not always foremost in the calculation of private economic choice and are often in conflict with the profit motive.

The courts have very generally concluded, not without exception, that it is the proper and lawful role of local government within broad boundaries to decide the appropriate use of land, and in doing so they are not to be

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substantively policed by the judiciary except in the extraordinary circumstance. While nonmarket interests emerged with greater force in the latter part of the 20th century, no one should underestimate the continuing importance of market forces in land use. Planning and zoning decisions must take into account the complex interrelationship between the public and private forces involved and the profound tensions that can arise between public necessity and legitimate private need. Otherwise, they produce, at best, short-term results and can lead to long-term difficulties that may not be easily remedied. Examples include a shortage of affordable housing for many workers in several localities and the resulting long commutes as workers "drive until they qualify." At the same time, the General Assembly has, over the last two decades, repeatedly amended the Virginia Code to correct what it has seen as abuses of the zoning power it has delegated to localities and to rebalance the forces at play between individual land owners and the local government. ¹⁹ However, the fundamental presumption of legislative validity that underlies each local land use decision ²⁰ means that this balancing of market and nonmarket factors is to be done principally through the legislative-and thus the overtly political-process to which much judicial deference is necessarily given.

16.202 Purposes of Zoning. Zoning is intended to "strike a balance between private property rights and public interests." ²¹ To this ultimate general end, all Virginia zoning and planning powers derive from the enabling legislation in chapter 22 of title 15.2 of the Virginia Code. ²² These statutes are not set out in detail here, but general mention must be made of the framework within which decisions are made.

The first zoning enabling legislation for Virginia was adopted in 1922 and gradually expanded in scope and coverage until the present framework was adopted in 1962. These basic statutes continue to change in greater or lesser measure with almost every session of the General Assembly.

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The General Assembly has statutorily identified several purposes for zoning and other land use ordinances that encourage localities

to improve the public health, safety, convenience, and welfare of their citizens and to plan for the future development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational, and recreational facilities; that the need for mineral resources and the needs of agriculture, industry, and business be recognized in future growth; that . . . residential areas be provided with healthy surroundings for family life; that agricultural and forestal land be preserved; and that the growth of the community be consonant with the efficient and economical use of public funds. ²³

Zoning ordinances themselves must be designed expressly for the general purpose of promoting the health, safety, or general welfare of the public and of further accomplishing the objectives of § 15.2-2200. To these ends, such ordinances shall be designed to give reasonable consideration to each of the following purposes, where applicable: (i) to provide for adequate light, air, convenience of access, and safety from fire, flood, impounding structure failure, crime, and other dangers; (ii) to reduce or prevent congestion in the public streets; (iii) to facilitate the creation of a convenient, attractive and harmonious community; (iv) to facilitate the provision of adequate police and fire protection, disaster evacuation, civil defense, transportation, water, sewerage, flood protection, schools, parks, forests, playgrounds, recreational facilities, airports and other public requirements; (v) to protect against destruction of or encroachment upon historic areas and working waterfront development areas; (vi) to protect against one or more of the following: overcrowding of land, undue density of population in relation to the community facilities existing or available, obstruction of light and air, danger and congestion in travel and transportation, or loss of life, health, or property from fire, flood, impounding structure failure, panic or other

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dangers; (vii) to encourage economic development activities that provide desirable employment and enlarge the tax base; (viii) to provide for the preservation of agricultural and forestal lands and other lands of significance for the protection of the natural environment; (ix) to protect approach slopes and other safety areas of licensed airports, including United States government and military air facilities; (x) to promote the creation and preservation of affordable housing suitable for meeting the current and future needs of the locality as well as a reasonable proportion of the current and future needs of the planning district within which the locality is situated; (xi) to provide reasonable protection against encroachment upon military bases, military installations, and military airports and their adjacent safety areas, excluding armories operated by the Virginia National Guard; and (xii) to provide reasonable modifications in accordance with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.) or state and federal fair housing laws, as applicable. Such ordinance may also include reasonable provisions, not inconsistent with applicable state water quality standards, to protect surface water and ground waters as defined in § 62.1-255. ²⁴

Section 15.2-2284 of the Virginia Code requires a broad review of factors relevant to ordinance composition, mandating reasonable consideration of (i) the existing use and character of property; (ii) the locality's comprehensive plan; (iii) the suitability of property for various uses; (iv) the trends of growth or change; (v) current and future requirements of the community as to land for various purposes (as determined by population, economic, and other studies); (vi) the transportation requirements of the community, (vii) the requirements for airports, housing, schools, parks, playgrounds, recreation areas, and other public services; (viii) the conservation of natural resources, (ix) the preservation of flood plains, (x) the protection of life and property from impounding structure failures, (xi) the preservation of agricultural, and forestal land; and (xii) the conservation of

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properties and their values and (xii) the encouragement of the most appropriate use of land throughout the locality. ²⁵

Section 15.2-2286 of the Virginia Code sets out in further detail some things that zoning ordinances may specifically include. It authorizes (i) variances and special exceptions; (ii) temporary application of ordinances in cases of annexation; (iii) granting special exceptions; (iv) appointment of a zoning administrator; (v) imposition of criminal penalties for violation of the ordinance; (vi) imposition of review fees; (vii) amendment of the ordinance and zoning map; (viii) submission of site plans; (ix) mixed use or planned use developments; (x) incentive zoning; (xi) agreements with landowners to downzone property in exchange for tax credits; (xii) consideration of environmental site assessments; (xiii) disclosure and remediation of property contamination before development approvals; and (xiv) enforcement of...