Virginia Land Use Law 101 Transition Area/ Interfacility Traffic Area Committee May 2, 2013

Terminology Use:Whatever a parcel of land is being used for, e.g., a residence, a retail store, a farm, etc. The City Zoning Ordinance (CZO) specifies which uses are allowed in any given zoning district. If a use is not listed in the “use regulations” for a particular zoning district, it is not allowed in that zoning district.

By-Right Development: Development that the CZO allows without any need for approval by the City Council. By - right uses are referred to in the CZO as “principal uses.” While certain other approvals are still needed, e.g., site plan, building permit they are “ministerial” in nature. “Ministerial” means that no discretion is involved in the approval process. If the requirements of the applicable ordinance are met, approval MUST be granted.

Discretionary Development: A type of development that requires the specific approval of the City Council, generally either by a rezoning, or a conditional use permit. The City Council has a great deal of latitude in approving or denying such matters.

Rezoning. A change in the zoning district classification of land, e.g., R-10 Residential to B-2 Community Business. It may only be done by the City Council. Conditional Use Permit. A type of discretionary approval of a specific use that, although allowed in the zoning district as a conditional use, requires the approval by the City Council. Examples include auto sales, cell towers and “Alternative Residential Development” (higher density than allowed by-right) in AG Districts.

Conditional Zoning: A type of rezoning in which the applicant (usually, the property owner and the developer together) voluntarily “proffers,” in a written document, the conditions under which the property may be developed. This type of rezoning has become, by far, the most common type of rezoning application, as it allows the governing body the ability to know, prior to acting on the application, the specifics of the proposed development, e.g. the uses, layout, building design, etc. It is a much better process than a “straight” (traditional) rezoning, because the governing body may not attach conditions to a straight rezoning, and so the property may be developed for anything, and in any manner, the new zoning district classification allows.

Zoning District Classification: When people refer to the “zoning” of a piece of property, they mean the zoning district classification. In most cases, it is the single most important factor in how a property may be developed. Examples include AG-1 Agricultural, R-10 Residential, B- 2 Community Business, etc.

PRINCIPLE #1 Zoning Regulations Must Allow a Reasonable Use of Property: This means that the zoning district classification and the uses allowed in that classification must be reasonable. But: there is no requirement that the “highest and best use” of a property must be permitted. If more than one zoning district classification is reasonable, it is up to the governing body to decide which use or uses will be allowed. This also applies to the density (number of dwelling units per acre) or intensity (e.g., floor area ration) allowed by the zoning of the property.

What does “reasonable” mean? Every case is different, and many factors may be considered – too many, in fact, to list here. Compatibility with surrounding uses and conformity to the Comprehensive Plan are probably the most important in theory and in practice. **But see the discussion of the Comprehensive Plan below.**

PRINCIPLE #2 Zoning “Runs With The Land” The zoning itself, as well as the regulations applicable to the property, do not depend on the ownership of the land. Thus, for example, a property zoned AG-1 remains AG-1, no matter who owns it, until the zoning is changed by the governing body. A rezoning or CUP cannot be made contingent on a change in the ownership of property or other future event, and the action of the governing body takes effect immediately.

PRINCIPLE #3 Similarly Situated Properties Must Be Treated Similarly Unless There is a Rational Basis for Treating Them Differently The “rational basis” standard is a relatively easy one to meet. When courts apply the rational basis standard to a challenged action, the action is usually upheld.

PRINCIPLE #4 The Comprehensive Plan Confers No Rights of Development of Property It is the City Zoning Ordinance, not the Comp Plan, that determines development rights. The Comp Plan is simply a blueprint that guides, but does not determine, the course of development within a city. The governing body is not required to adhere to the Plan in every instance. However, if an application conforms to the Comp Plan, it (1) has a better chance of being approved by the governing body; and (2) if the action of the governing body (whether approval or denial) is challenged in court, the fact that the application conforms to the Plan is powerful evidence.

PRINCIPLE #5 Once a Right to Develop Property “Vested,” it is “Immune” from Changes in the Zoning Ordinance A “vested right” is the right to develop property in a specific manner in spite of a change in the law that would otherwise render the development unlawful. If a person has a vested right to develop property for a specific use, he (as well as his successors-in-interest) can develop the property for that use even if the zoning ordinance is changed so that it no longer permits that use. A vested right is acquired after (1) a specific development proposal is approved by a “significant governmental act;” and (2) the person who received the approval acts in reliance upon that approval by diligently going forward with the development is good faith, either by incurring extensive obligations or substantial expenses in diligent pursuit. There is no vested right without these two elements. There is no such thing as a vested right to have the existing zoning of property remain.

Rules in the Transition Area and Interfacility Traffic Area There are no special rules for by-right or discretionary development specific to the Transition Area. Allowed by-right development depends on the zoning district classification. Thus, if a property is zoned B-2, it may be developed as a matter of right for any use allowed in the B-2 District. Discretionary development (i.e., development that requires a rezoning or CUP) is limited by the City’s Air Installations Compatible Use Zones (AICUZ) Overlay Ordinance (CZO Article 18) and depends upon the Noise Zone in which the subject property lies (the higher the Noise Zone, the more restrictive the rules are). In addition, while not having the force of law that the AICUZ Overlay Ordinance has, the Comp Plan plays an important part in City Council’s actions

In the Interfacility Traffic Area, however, there are specific rules governing residential development. These rules are very restrictive and allow residential development at a density of no more than 1 dwelling unit per 15 acres of developable land (i.e., land outside of water or wetlands). Thus, it is impossible even to get a rezoning to a classification that allows greater residential density than 1:15. In addition, the entire ITA is within a Noise Zone of dB DNL or greater and is therefore subject to the provisions of the AICUZ Overlay Ordinance. As a result, even non-residential development must be considered compatible with Navy flight operations under the Ordinance if it requires Council approval.