## Facts

- John McQueen owned land in Prince George County and sought to develop it as a “cluster subdivision,” with homes grouped to preserve open space.
- The county had adopted a Cluster Overlay District ordinance (the CLO ordinance) that allowed cluster subdivisions as a by-right use if stated standards were met.
- The CLO ordinance set out a multi-step review process, including a meeting with the zoning administrator and submission of a preliminary plat for approval, followed by submission of a final plat.
- On May 23, 2008, McQueen, his engineer, and his attorney met with Pamela Thompson, a deputy zoning administrator, to discuss McQueen’s proposed development and a draft preliminary plat.
- When McQueen did not receive a written approval he expected, he filed a declaratory-judgment action seeking a ruling on whether his proposal could proceed by right or required a special exception.
- Around June 19, Thompson sent McQueen a “compliance letter” stating that McQueen’s property met the CLO ordinance requirements for by-right cluster subdivision development.
- The letter also told McQueen he still had to comply with other applicable laws and regulations and still had to obtain final approval under the CLO ordinance.
- The CLO ordinance did not require issuance of such a compliance letter, and Thompson did not treat the letter as approval of a specific project.
- After receiving the compliance letter, McQueen voluntarily dismissed/abandoned his first declaratory-judgment case.
- Several months later, the Board of County Supervisors repealed the CLO ordinance.
- McQueen then filed a second declaratory-judgment action, claiming he had a vested right to proceed with by-right cluster subdivision development because the compliance letter was a “significant affirmative governmental act” under Virginia Code § 15.2-2307.
- The trial court ruled for McQueen, and the Board appealed.

## Issues

1. Whether the deputy zoning administrator’s compliance letter was a “significant affirmative governmental act” under Va. Code § 15.2-2307 sufficient to vest McQueen’s right to develop a by-right cluster subdivision despite repeal of the CLO ordinance.

## Decision

- The Supreme Court of Virginia reversed the trial court.
- The Court held that the compliance letter did not qualify as a “significant affirmative governmental act” under Va. Code § 15.2-2307.
- Because there was no qualifying governmental act, McQueen did not obtain a vested right to develop under the repealed CLO ordinance.

## Legal Principles

- A vested right under Va. Code § 15.2-2307 requires, at minimum, a “significant affirmative governmental act” tied to the proposed development; reliance expenditures alone do not create vested rights without such an act.
- Informal or advisory staff communications that do not approve a specific project, and that state further approvals are required, generally do not amount to the sort of official approval needed to satisfy the statute.
- When an ordinance establishes a staged approval process (such as preliminary-plat and final-plat review), a statement that property appears to meet by-right criteria does not substitute for the formal approvals the ordinance requires.
- If no vested right has formed before a zoning change, a locality may apply the new zoning rules (including repeal of a prior by-right option) to the landowner’s proposed development.

## Conclusion

The Supreme Court of Virginia ruled that McQueen did not acquire vested rights to build a by-right cluster subdivision under the former CLO ordinance because the deputy zoning administrator’s compliance letter was not a significant affirmative governmental act under Va. Code § 15.2-2307, so the county’s later repeal of the CLO ordinance controlled.


Board of County Supervisors of Prince George County v. McQueen, 752 S.E.2d 851 (2014)