Last Updated May 14, 2019

Law and Practice

Contributed By McGuireWoods LLP

Authors



McGuireWoods LLP has a diverse real estate practice of more than 80 lawyers and land use planners in its offices in Tysons, Charlottesville, Richmond and Norfolk, with skills in a wide range of traditional and non-traditional real estate transactions. The firm’s transactional representation spans all aspects of real estate acquisition, development, financing and disposition, including acquisition, sale, leasing and financing transactions, as well as project finance, construction, public-private partnerships, negotiation of local and state incentives and privatization transactions. The team respresents clients around the world on various sides of such transactions, including Fortune 500 companies. The transactional practice is complemented by the firm’s land use expertise, as it frequently handles zoning and land use matters for development projects.

Typically, questions of design and appearance – insofar as these are subjective aesthetic criteria – are not raised or adjudicated by the language of a local government’s zoning ordinance in Virginia, with exceptions made for those portions of the locality that are deemed to be a historic site, structure, or similar. In practice, these sorts of aesthetic questions arise primarily during the public process for development proposals seeking legislative action by the local government. Local government employees, elected officials and residents often make requests for certain concessions that may or may not arise from local planning documentation, such as a comprehensive plan.

Local governments, such as a county’s Board of Supervisors, are given the authority to enact and enforce comprehensive planning, and to regulate the use and development of land through the adoption of a zoning ordinance. Local ordinances will typically detail uses permitted in a geographically bound district and ascribe certain requirements to permit the conduct of that use, and may also restrict the density, height, and size of a parcel.

Based on its enacted local ordinances, each local jurisdiction will feature distinct documentary and procedural requirements for subdivisions, amendments to the zoning ordinance, and development permits, with a local lexicon of established terms to match. In practice, a project will typically be entitled either through a “by right” process, wherein a development is allowed under existing local zoning rules and is processed by that locality as an administrative matter, or as a discretionary act of the local government. By right entitlements are generally not subject to public input or public hearings.

Discretionary approvals are typically the more time-intensive and costly of entitlements to obtain. The Virginia Code sets out mandatory notice provisions in § 15.2-2204, and others. Depending on the specific nature of the development proposal, a discretionary approval may include significant fees and public hearing appearances before one or several local bodies, and in limited circumstances can involve the negotiation of contributions or other proffers to offset the public cost of proposed development.

As subdivisions of the State, localities have the benefit of sovereign immunity. Appeals against a locality’s decision must be purely statutory in nature. Administrative decisions of a local zoning administration can typically be brought to a locality’s Board of Zoning Appeals, which is empowered under the Virginia Code to, in part, hear appeals of a zoning official’s decisions, determinations, orders, and requirements, per § 15.2-2311. Other matters, such as appeals of a local government’s zoning ordinance decision, may be heard by the Circuit Court.

Depending in part on the geographic location of the proposed development, and the local ordinances adopted by the local jurisdiction, larger-scale development projects by private developers may require agreements setting out certain parameters of development, and providing for the terms and conditions under which the development proposal may proceed.

In some jurisdictions, a series of proffers may be required to secure approval of a proposal, which may include terms and conditions for the provision of certain public benefits, inclusive of transportation improvements, public parks, and affordable or workforce housing. Often, these conditions must be fulfilled to a degree that is satisfactory to the local government prior to the issuance of permits required for development or occupancy.

Subject to variations in local ordinances, most local governments have a series of options at their disposal to ensure restrictions on development or use are enforced. These options range from the issuance of notice violations that identify violations and assign fines, to the denial of critical construction-related or occupancy-related permits, to the denial of future redevelopment or expansion opportunities to properties or structures deemed to be nonconforming with the local zoning ordinance.

McGuireWoods LLP

1750 Tysons Boulevard
Suite 1800
Tysons, VA 22102-4215

+1 703 712 5000

+1 703 712 5050

info@mcguirewoods.com www.mcguirewoods.com
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Authors



McGuireWoods LLP has a diverse real estate practice of more than 80 lawyers and land use planners in its offices in Tysons, Charlottesville, Richmond and Norfolk, with skills in a wide range of traditional and non-traditional real estate transactions. The firm’s transactional representation spans all aspects of real estate acquisition, development, financing and disposition, including acquisition, sale, leasing and financing transactions, as well as project finance, construction, public-private partnerships, negotiation of local and state incentives and privatization transactions. The team respresents clients around the world on various sides of such transactions, including Fortune 500 companies. The transactional practice is complemented by the firm’s land use expertise, as it frequently handles zoning and land use matters for development projects.

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