In our land use practice, Alliance Law Group typically represents individuals, community or homeowner associations, and businesses that oppose a development project because of the possible adverse impact on the character of their communities or the value of their homes or businesses.
For those seeking to stop such development, consideration should be given to retaining experienced legal counsel as early in the land use process as possible. They can advise you of the applicable legal standards and may be able to point out arguments on which you have not focused.
However, if the land use application is approved, it may be necessary to go to court if you wish to stop the approved development from taking place. While the following is not intended to provide legal advice (because the facts of every case are different and require legal advice from counsel who are familiar with those facts), some of the issues that you and your attorney may wish to consider are outlined below.
There is a very short period of time in which to file the court action. In Virginia, those seeking to challenge a zoning, rezoning, special exception, or similar land use decision have only 30 days from the date of the decision of the local governing body, in which to file the case in the local circuit court. This is very different than the time period that typically applies in other types of cases. For example, in matters involving a dispute over a written contract, the statute of limitations is 5 years. It should be noted that there are some limited exceptions to this 30-day requirement that your attorney can discuss with you.
Demonstrating the necessary legal standing is sometimes difficult. In order to successfully bring a case in a Virginia court challenging a land use decision, it is necessary to demonstrate that you are adversely affected (i.e., that you have the necessary “standing”). This means that you must assert in your court complaint that, as a result of the land use decision, you will suffer some type of “particularized harm” that is different from the harm the general public will suffer. Sometimes even the owners of property located very close to the property covered by the land use decision have been found to lack the necessary standing.
Virginia courts are very deferential to local government land use decisions. Absent a violation of a local ordinance or a Virginia law, Virginia courts apply a “fairly debatable” standard in evaluating a legal challenge to a local government land use decision. This standard means in effect that, if reasonable people can disagree about whether or not the land use decision was correct, the land use decision normally will be upheld by the court. This is because courts are understandably reluctant to substitute their judgment for the judgment of an elected local government body.
However, in cases where local governments are alleged to have violated the requirements of their own ordinance, or provisions of Virginia law, the “fairly debatable” standard generally does not apply. This is because, unlike the land use area, where courts defer to the judgment of local governments, courts are themselves experts in determining the meaning of a law or ordinance and whether it has been violated.
Alliance Law Group can help you address these obstacles. As you can see from the discussion above, opposing a land use project can be tricky. But, if you are not otherwise represented by legal counsel, we would be pleased to consult with you about a particular land use project that you oppose and help determine whether there is a sound legal basis on which to oppose it.