What is Grandfathering?
What is "grandfathering"?
Grandfathering is a legislative decision by the Board of Supervisors to retain
old zoning regulations for land applications beyond what is protected by state
law. (For existing protections under state law, see information on vested rights
in the next answer.)
subdivision applications in the rural area
What must a landowner do under Virginia law to claim a
By an amendment to the state zoning law passed by the legislature
in 1998, a landowner has a vested right to improve his property
according to existing zoning rules only if he meets three specific
1) The landowner must have obtained a "significant affirmative
governmental act," as early in the land application process
as preliminary subdivision approval for development of that specific
2) The landowner must have "relied in good faith" on
that government action.
3) The landowner must have already incurred "substantial
expenses" in pursuing the actual construction of that specific,
approved project. So, for example, if a landowner has received
a valid building permit and has started construction of a house,
the county cannot order him to tear down the house or stop construction,
even if it does not conform to the new zoning regulations.
In such cases, the landowner is said to have a "vested right"
that cannot be affected by subsequent government action to make
those specific, previously approved improvements.
Is purchasing a property with the intention of developing
it sufficient to claim a vested right to develop that property?
Definitely not. Simply buying land, or incurring expenses necessary
to file an application for development (for example, conducting
perc or well tests, or preliminary engineering studies for a subdivision
prior to filing an application) is not sufficient under Virginia
state law. The law explicitly requires that "substantial expenses"
or "extensive" financial obligations must be incurred
on the specific project for which approval has been obtained. The
Attorney General of Virginia reiterated in a 2004 decision that
a landowner has no vested rights merely in an "anticipated
use" of his land and no property right to have a parcel's current
zoning status remain unchanged.
What is the Planning Commission proposing?
In contrast to the letter and spirit of Virginia state law, the
Loudoun County Planning Commission has recommended opening a huge
loophole that would "grandfather" hundreds of subdivision
plans that were hurriedly filed in the last year. Under the Planning
Commission proposal, now under review by the Board of Supervisors,
even applications that have not yet been fully approved for preliminary
subdivision at the time the new rural zoning ordinance is adopted
would be exempted from the new rules.
How many houses could be built in western Loudoun under
this proposed "grandfather clause" loophole?
In March 2005, the zoning of much of rural Loudoun County reverted
to A-3, or one house per three acres, when the previous rural zoning
ordinance was invalidated on a procedural technicality. Even though
the Board of Supervisors quickly made known its intention to correct
this procedural flaw and reinstate rural zoning to limit development,
hundreds of developers rushed to try to get site plans approved
before the lower density limits could be reinstated. There are currently
pending applications for more than 1,000 new lots in western Loudoun
seeking to exploit this loophole.
What is wrong with the Planning Commission's grandfather
Virginia state law already recognizes that as a matter of fairness
and equity, landowners who have played by the rules and acted in
good faith should not be penalized when zoning policy changes. The
developers who rushed to file applications for high-density development
in western Loudoun during the last year have been trying to take
advantage of a legal loophole that they knew would be open for only
a limited time. They took a gamble that they could have their applications
approved before lower-density rural zoning was reinstated. Now that
that window is about to close, they are trying to save that losing
gamble by having the law changed specially for them. Grandfathering
these applications, beyond current protections under the state law,
is fundamentally unfair to the overwhelming majority of landowners
who have played by the rules.