Moratorium, ‘sunset clause’ on housing developments illegal, attorneys say

Published 1:57 pm Friday, February 9, 2024

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Virginia localities can’t legally cap the number of applications for new housing developments they’ll consider, nor rescind the rezoning approval of a development that hasn’t broken ground, according to attorneys for Isle of Wight County and the town of Smithfield.

“Virginia does not allow moratoriums, even temporarily, on land use applications,” County Attorney Bobby Jones told Isle of Wight’s Board of Supervisors on Jan. 16.

According to Jones, once a rezoning application is filed, it undergoes review by county staff and 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-Danville, is sponsoring a General Assembly bill this year that would reduce that window to four months.

Marshall’s bill, which was referred on Jan. 23 to a House subcommittee on cities, counties and towns, would further prohibit a rezoning application’s conflict with a locality’s comprehensive plan as the basis for the locality’s disapproval of a site plan that is “otherwise in conformity with duly adopted standards, ordinances, and statutes.”

Isle of Wight, the seventh fastest-growing county in Virginia according to census data, saw seven rezoning applications for new and expanded subdivisions in 2023 that collectively would add over 1,900 new houses to the county’s northern end. Another 2,200 new homes spread across eight developments have already had their rezoning applications approved.

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” where 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.”

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

Supervisor Renee Rountree, a former Smithfield Town Council member who in November was elected to the Smithfield-centric District 1 supervisor seat, had at her first meeting in her county-level role on Jan. 4 called on fellow supervisors and former Town Council colleagues to delay approving any additional subdivisions until a proposed “growth task force” composed of town and county representatives reports back in September with data on the county’s capacity to absorb the influx of new residents.

Rountree revived the proposal at the supervisors’ Jan. 16 meeting, but the board again took no action other than to urge her to retool her proposal to include representation by the county’s and two towns’ planning commissions.

Virginia law requires local governments to have their own planning commissions, appointed bodies that make recommendations on land-use decisions to their respective town or city councils or boards of supervisors. Planning commissions also share primary responsibility for developing and revising a locality’s state-required comprehensive plan to guide land-use decisions based on local growth and development trends.

“I have appointed my planning commissioners for a reason,” Board of Supervisors Chairman Joel Acree said. “They are very good about vetting a lot of these; they are my experts.”

If Rountree’s task force is approved, Acree said his appointees to the body would be his district’s commissioners: George Rawls and Rick Sienkiewicz.

Rountree, who has since reworked her proposed task force to include planning commission representation, says she plans to again push for its creation when the supervisors reconvene on Feb. 15.

Rountree, at the Isle of Wight Planning Commission’s Jan. 23 meeting, suggested her task force proposal could serve as a “precursor” to the commissioners’ state-mandated five-year review of the “Envisioning the Isle” comprehensive plan the county adopted in early 2020. Her latest proposal for the task force calls for an 11-member body consisting of one supervisor, one council member or planning commissioner from each town, one Isle of Wight planning commissioner, one non-government representative from each of the county’s five voting districts and two at-large members, one from the Newport Development Service District and one from the Carrsville DSD. The DSDs serve as geographic areas where the county hopes to attract developers with available or planned water and sewer infrastructure and road improvements.

Rountree, as part of her revised proposal, is calling for the updating of a 2020 study by Bethesda, Maryland-based TischlerBise Inc. The study, which had cost the county $79,000 to produce at the time, had forecast based on 2018 and 2019 data that the county would grow by roughly 0.8% per year to a countywide 39,255 residents by 2024 and wouldn’t cross the 40,000 mark until 2027. Census data, however, shows Isle of Wight has grown 4% over the past two years and had an estimated 40,151 residents as of mid-2022.

Another option Isle of Wight Planning Commission Vice Chairman Thomas Distefano proposed at the Jan. 23 meeting was for Rountree’s group to take the form of a subcommittee of the Planning Commission, asserting that much of what she is proposing “overlaps” with the Planning Commission’s responsibilities.