Rezoning moratorium likely illegal, county attorney says

Published 5:02 pm Friday, February 2, 2024

Delaying or outright denying all rezoning applications for new housing developments during the seven months Supervisor Renee Rountree’s proposed “growth management” task force would meet could run afoul of Virginia law, Isle of Wight County Attorney Bobby Jones has warned.

Rountree, who was elected in November to the Smithfield-centric District 1 seat on the county’s Board of Supervisors, had called for the pause in January as a component of her proposal for the ad hoc 11-member committee, which if formed would be tasked with delivering a report by September on the county’s capacity to absorb the influx of residents from seven rezoning applications the county received in 2023 for new and expanded subdivisions that would collectively add over 1,900 houses to the county’s northern end. Isle of Wight, already the seventh fastest-growing county in Virginia according to census data, has another 2,200 new northern-end homes on the books across eight developments approved prior to 2023.

“Virginia does not allow moratoriums, even temporarily, on land use applications,” Jones said.

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One possible workaround could entail Isle of Wight’s supervisors passing a zoning ordinance amendment similar to one they enacted last year capping the cumulative acreage devoted to solar farms at 2% of the county’s prime farmland. The cap, according to Assistant County Administrator Don Robertson, doesn’t constitute a moratorium but rather “is part of the criteria the Board will evaluate when considering applications.”

“The cap does not prevent applicants from applying, nor does it prevent the Board from considering approval of a project that exceeds the current 2% cap,” Robertson said.

“Having a formal moratorium would be, in my opinion, illegal in the Commonwealth of Virginia,” said Free Enterprise Forum President Neil Williamson, whose privately funded, Charlottesville-based public policy organization has seen similar moratorium proposals in Central Virginia localities experiencing growing pains.

“It’s come up a number of times,” Williamson told The Smithfield Times in a Feb. 2 interview.

In mid-2019, Charlottesville’s Daily Progress newspaper reported more than 450 residents of Albamarle County’s Rio District had signed petitions urging “no further development be considered until the infrastructure surrounding the area is evaluated and improvements in road safety and traffic flow are implemented.” Albemarle’s supervisors approved a 328-unit apartment complex named in the petition nine months later in March 2020.

In late 2006, Prince William County’s Board of Supervisors voted to impose a one-year freeze on rezoning requests for new houses in an effort to ease the Washington, D.C. suburb’s gridlock. The Smithfield Times was not immediately able to determine whether Prince William’s moratorium was ever challenged.

Williamson, while lacking a law degree, has since 2003 headed the Free Enterprise Forum, which holds 501c6 nonprofit status akin to chambers of commerce. His organization, Williamson said, has been analyzing local government land-use decisions for 20 years.

“When you turn down a rezoning, there has to be a stated reason for the denial,” Williamson said. It could be a development’s impact on schools or on traffic, but “has to be rational,” and ideally grounded in the locality’s comprehensive plan, a state-required document intended to guide land-use decisions. A “blanket moratorium,” Williamson said, likely wouldn’t qualify.

“The M-word is not something that we can say,” Rountree acknowledged during a Jan. 23 presentation she made to the county’s Planning Commission on a retooled concept for her growth task force.


The rezoning approval process

According to Jones, once a developer files a rezoning application, the zoning staff for the city, town or county in which the application was filed are obligated to review it. The review process, which can take months, often involves getting comments from state agencies such as the Virginia Department of Transportation.

Once that review is complete, it heads to the Planning Commission, which has 100 days to hold a public hearing and vote on a recommendation to the supervisors.

If the commissioners don’t reach a decision within the allowed timeframe, the application heads to the supervisors with an automatic recommendation for approval.

Under current state law, the supervisors then have 12 months to hold their own hearing and vote. The only discretion the supervisors have is over the date and time of the required hearing, so long as it falls within the allowed window.

If they don’t act within the one-year timeframe, the rezoning application is approved automatically. Del. Danny Marshall III, R-Daville, on Jan. 10 proposed a General Assembly bill that would have reduced the supervisors’ window to four months and eliminated comprehensive plan conflicts as a justifiable reason for rejecting a developer’s site plan, but the bill died in a Feb. 1 vote by the House of Delegates’ subcommittee on counties, cities and towns. Five Democrats and three Republicans unanimously voted to lay Marshall’s House Bill 1236 on the table, meaning it won’t advance any further this year.

Were the county to unjustifiably deny approval of a rezoning application, “the county would be sued, and it would go to court, and if we could not establish the reasons for that denial, the court would order it approved,” Jones said.

“There is a certain amount of continuity that needs to be between your comprehensive plan and your decision-making,” Williamson said.

Isle of Wight’s “Envisioning the Isle” comprehensive plan, which was last updated in 2020, identifies three “development service districts” in place since 1991 where the county aims to attract development with roads and public water and sewer infrastructure. 

Two-thirds of Isle of Wight’s proposed and in-progress northern-end developments are located in the Newport DSD, which spans much of the unincorporated Carrollton community. While the approved and proposed rezoning have largely been in accordance with the comprehensive plan, data Isle of Wight County Schools presented to its School Board in December projects the influx of students from the Carrollton developments and those in Smithfield, which as a town controls its own zoning, will put four of the county’s nine schools at or above capacity once everything’s fully built out. 

“In most localities, the developers have all the leverage because the county government wants the development, and are competing with other localities for development dollars,” said Richard Meagher, professor and chair of Randolph-Macon College’s Department of Political Science. “That’s why you have the state giving away millions to billionaire Ted Leonsis for an arena in Alexandria – the worry is if you don’t, he goes somewhere else. So Isle of Wight here seems to be in an unusual position of possibly wanting to say no to developers.”

“One of the good things that comes out of having more rooftops is getting a hospital,” said Rountree, a former hospital administrator who’s now vice president of sales at Carenet Health.

She worked for Riverside when the hospital system first proposed expanding its footprint into Isle of Wight in 2008 on land it had acquired adjacent to the then-nonexistent 776-home Benn’s Grant development. Virginia’s Department of Health, after initially recommending denial of the state-required certificate of public need for the new hospital, reversed course and approved Riverside’s plan for a 50-bed facility in 2022, citing Isle of Wight’s “demonstrated growth and development” over the years.


What about stalled developments?

Isle of Wight approved a 340-home development, dubbed “Timber Preserve,” for the intersection of Smiths Neck Road and Ballard Creek Drive in Carrollton in 1986, but the project has gone decades without breaking ground. Another decades-old development, the 2005-approved St. Luke’s Village at the former Smithfield Downs golf course, is under contract to be purchased by another developer looking to revive the stalled project.

Smithfield Town Attorney William Riddick told Town Council members on Jan. 22 that state law doesn’t allow localities to enact a “sunset clause” under which a rezoning approval would expire after a set number of years of inactivity. Virginia, he said, follows the “Dillon Rule,” named for 19th century Iowa Supreme Court Justice John Dillon. States that follow the Dillon Rule prohibit their cities, towns and counties from exercising powers not expressly granted to them by the state legislature.

Even if a project was rezoned decades ago and hasn’t broken ground, “they can come in and ask for their site plan review,” Jones said. “That is a ministerial act that we’re supposed to process in a timely fashion. … We cannot say we’re going to issue 100 building permits this year but no more.”