Key Legal Aspects

General Legal Terminology

Land (Real Property) Rights

Land (or real property) rights must be viewed in the sense of being a set of sticks or twigs tied together to make up a bundle of rights. Landowners hold rights such as:

  • Rights to grant easements (lawful trespasses)
  • Rights to minerals below the ground surface
  • Right to timber trees and clear land
  • The right to sell the land.
  • As well as other rights.

Individuals may sell off specific rights for a time or forever through agreements with companies for uses such as mining or developing a pipeline, to a neighbor through granting a driveway access easement, or to a land trust through selling certain development rights by placing the land under a conservation easement, as well as numerous other ways of selling individual rights out of the bundle. The main aspect to take away is that landowners can sell certain sticks from their bundle but still have the ability to own the land and use the remaining rights on the land.

Zoning splits localities into different zones which cause individuals in such zones to have different bundles of individual rights. For example, an industrial zone might have rights to mining, developing a factory, or developing structures that cover majority of the parcel or lot of land. On the reverse a residential zone may not have the rights mentioned previously yet the zone may have rights that the industrial zone does not have such as the right to develop a home, have an atmosphere which is undisturbed from noise or pollution, or the right to operate a short term rental in a vacant room of the house.

Euclidean And Non-Euclidean Zoning


Euclidean zoning is named after the landmark Village of Euclid, Ohio V. Ambler Realty Company Supreme Court case in 1926. The case involved Ambler Realty Company suing the Village of Euclid after Euclid divided a tract of land owned by Ambler into separate zoning districts, thus limiting the expected development of Ambler’s tract of land. The Supreme Court found that speculative damages claimed by Ambler were insufficient in invalidating Euclid’s ordinance and further the Court found that Euclid had the right to divide the Village into separate zoning districts as zoning ordinances will always be upheld as long as it does not exceed the police power and there is some connection to public welfare.[1]


Euclidean Zoning is a form of zoning where there are different districts for different uses (ie residential, commercial, industrial, etc) and only one use is allowed per tract of land. Euclidean Zoning is also known as single-use zoning.


The G-1 Zoning District allows single family houses, barbershops, corner stores, and public parks. A tract of land is only allowed to have one use per tract, this means that single family homes cannot operate barbershops, and nor can a corner store exist on the same tract as a public park. Another example, this involving the restriction based on districts, is: The R-1 Zoning District only allows single family houses on tracts of land which are one acre or more, and the B-1 Zoning District allows commercial businesses on tracts of land which are ¼ of an acre or more. Landowners must have tracts of land in each separate Zoning District if they wish to have a single family house and a commercial business.

Non-Euclidean Zoning:

Non-Euclidean or multi-use zoning does not conform to the method of zoning set by Euclidean Zoning through allowing multiple uses on a single tract of land, and within a single zoning district. This means that corner stores not only can be located right next to a public park or single family house, but it also means that the single family house can be located on top of the corner store and serve as a condo or apartment surrounded by a public park. Non-Euclidean Zoning is typically implemented in order to reduce the distance and time of residents to travel to everyday amenities such as places to work, shop, play, eat, and perform other tasks or chores.

Dillon’s Rule And Strict V. Loose Interpretation[2]

Dillon’s Rule originates from two court decisions issued by Judge John F. Dillon of Iowa in 1868, and it was formalized as a cornerstone of American municipal law with the Hunter v. City of Pittsburgh Supreme Court decision in 1907. Dillon’s Rule follows the guidelines set by what is known as Strict Interpretation in comparison to Loose Interpretation, both of which are explained below:

Strict Interpretation Or Dillon’s Rule:

Governments, individuals, and entities may only act upon the rights, powers, and duties explicitly granted to the party.

Such rights, powers, and duties include those implied or incident to the rights, powers, and duties granted.

Governments, individuals, and entities are bound to the provisions provided to them by the State or governing body.

Loose Interpretation Or Home Rule:

Governments, individuals, and entities may act upon rights, powers, and duties as long as they have not been explicitly denied to the party.

Such rights are constantly reviewed by judicial authorities.

This process allows for local autonomy and limits the degree of state interference in local government, individual, or entity affairs.

Virginia is typically stated as being a Dillon’s Rule state, which in many cases this is true, but in other cases this is not. In general, Virginia is known as a mixed state where it demonstrates qualities of a Dillon’s Rule state through laying out explicit aspects which a local government must follow, or be restricted to or from. At the same time, Virginia has numerous cases such as steep slope overlay zoning, source water overlay zoning, form-based code zoning, and other aspects which are not explicitly stated yet have not been challenged in a judicial review.

As noted above, Strict and Loose Interpretation also applies to the rights of individuals and entities, which is evident in how local zoning ordinances may be interpreted. In most localities in Virginia, zoning ordinances state which rights and uses are allowed by right, as an accessory, or by a Conditional Use Permit (also called Special Use Permit). This means that the locality has enacted a Strict Interpretation standard where the right or use is only permissible if it is explicitly stated in the zoning ordinance. Other localities will follow a Loose Interpretation where specific or general uses and rights are stated as being denied or regulated but all other uses that are not listed are allowed and not regulated by local zoning.

Nuisance Law

A nuisance can be described as being the, “right thing in the wrong place.” A famous example of this issued by Supreme Court Justice Sutherland is, “pig in the parlor instead of the barnyard.”[3]

There are three types of nuisances:


A public nuisance adversely affects the health, morals, safety, welfare, comfort or convenience of the public in general. It also affects an indeterminate number of people. Finally, local governments can be accused of maintaining a public nuisance by failing to act against one.


Pollution of public waterways, creation of public health hazards, blocking public access to public amenities, etc.


A private nuisance involves unreasonable interference with the use or enjoyment of land without trespass or physical invasion, and causes special injury affecting one person or a small group. It is actionable as a tort against a private person.


Mixture of private and public nuisance.

According to § 3.2-301 Virginia is a right to farm state, meaning that if agriculture is allowed by local zoning laws then a nuisance complaint cannot be issued. Further, nuisance claims are only valid if they did not exist prior to an individual or group moving to the location. Moving to a nuisance is a null claim and does not hold in a court’s review.


The aspect of takings involves the taking of rights or property of individuals without just due process of law. Local government decisions noted as a taking can invalidate and ultimately lead to the repeal of such decisions.

Upzonings, rezonings, and the implementation of new zoning related ordinances can lead to certain individuals, groups, or entities experiencing a reduction or increase in the number of rights and allowable uses they are permitted to hold. This means that certain zoning actions can either reduce or expand one’s bundle of rights. In accordance with the Fifth Amendment, individuals, groups, and entities must be provided a just due process of law in cases where property or rights may be taken from said party.

Localities will outline in Comprehensive Plan updates through actionable goals as well as the Future Land Use Map, aspects related to upzonings, rezonings, and general changes in the use of land in the future. Adopting such changes aid in protecting a locality if a suit is brought against the locality for the proposed changes that they have enacted. In short, a Comprehensive Plan serves the purpose of providing a backing to the Tenth Amendment’s police powers, as well as providing a just due process in accordance with the Fifth Amendment.

In addition to providing a just due process in accordance with the Fifth Amendment, there is also the aspect relayed by section I of the Fourteenth Amendment wherein all individuals must be provided an equal due process. This relates to land use decisions as decisions made by a local government must be related to the use of land and not the individuals that have applied for changes or the individuals who will be impacted by such changes. In addition, while Conditional Use Permits (Special Use Permits) and Zoning Map Amendments (Rezonings) do not set legal precedents, it is advised that the same process is used in order to ensure that the Fourteenth Amendment is followed and individuals are provided an equal due process of law.


Aspects From The United States Constitution:

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Fourteenth Amendment

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Aspects From The Virginia State Code:

Legal Intent And Standing Of The Comprehensive Plan

  • 15.2-2200. Declaration of legislative intent
  • Improve the public health, safety, convenience, and welfare.
  • And to plan for the future development of communities so that:
    • New community centers be developed with adequate highway, utility, health, educational, and recreational facilities.
    • The need for mineral resources and the needs of agriculture, industry, and business be recognized in future growth.
    • The concerns of military installations be recognized.
    • Residential areas be provided with healthy surroundings for family life.
    • Agricultural and forestal land be preserved.
    • Growth of the community be consonant with the efficient and economical use of public funds.
    • 15.2-2232. Legal status of plan
  • Adopted comprehensive plans control the general or approximate location, character and extent of each feature shown on the plan. The following features must not be constructed until their general location or approximate location have been submitted to the commission for being approved as being substantially in accord with the adopted comprehensive plan, unless they are already listed in the adopted comprehensive plan. The features are as follows:
    • Street or connection to an existing street, park or other public area.
    • Public building or public structure.
    • Public utility facility or public service corporation facility other than a railroad facility or an underground natural gas or underground electric distribution facility of a public utility as defined in subdivision (b) of § 56-265.1 within its certificated service territory.
    • Telecommunication towers.
    • Solar facilities.


Virginia State Requirements:

Per § 15.2-2210, all localities must have a planning commission.

Per § 15.2-2223, all localities must prepare and adopt a comprehensive plan and the following must be taken into account:

  • In preparation:
    • The commission must make comprehensive surveys and studies of existing conditions and trends of growth and the probable future requirements of the territory and inhabitants.
  • In the comprehensive plan there must be:
    • A general or approximate location of future public improvements such as roads.
    • A transportation plan that:
      • Locates needs and improvements.
      • Recognizes a hierarchy of roads.
      • Considers methods of aligning transportation infrastructure with affordable and accessible housing and community services to facilitate community integration of the elderly and persons with disabilities.
      • Includes a map of road and transportation improvements, along with associated costs.
      • Is consistent with the Commonwealth Transportation Board’s Statewide Transportation Plan, Six-Year Improvement Program, and in line with CTB.
      • Must be approved by VDOT prior to adoption.
    • Show the locality’s long-range recommendations for the general development of the territory.
    • The designation of areas and implementation of measures for the construction, rehabilitation, and maintenance of affordable housing to meet current and future needs.
    • Strategies to provide broadband infrastructure that is sufficient to meet the current and future needs of the locality and its residents and businesses.


Per § 15.2-2223, all localities must prepare and adopt an official map showing:

  • Legally established public street, alley, walkway, waterway, and public areas.
  • Future or proposed public street, alley, walkway, waterway, and public areas.


Per § 15.2-2223.1, all localities must designate urban development areas in their comprehensive plan and do the following:

  • Urban development areas must take into account projected population growth for at least 10 but not more than 20 years. Official estimates must come from either the UVA Weldon Cooper Center, Virginia Employment Commission, or United States Census Bureau.
  • The boundaries of urban development areas must be reexamined, and if necessary, revised every five years with updated population growth estimates.
  • The boundaries of urban development areas must be shown on future land use maps.
  • Urban development areas must incorporate principles of traditional neighborhood design:
    • Pedestrian-friendly road design.
    • Interconnection of new local streets with existing local streets.
    • Connectivity of road and pedestrian networks.
    • Preservation of natural areas.
    • Mixed-use neighborhoods with mixed housing types and affordable housing.
    • Reduction of front and side yard setbacks.
    • Reduction of subdivision street widths and turning radii at intersections.
  • Describe any financial and other incentives for development.
  • Consult the siting and size of urban development areas with adjacent localities and the local planning district commission.

Per § 15.2-2224, local planning commissions must:

  • Survey and study matters related to the comprehensive plan while preparing the plan.
    • If historic areas are not studied, then they must be included in the plan.
    • If mineral resources are not studied, then they must be included in the plan.
  • Survey and study probable future economic and population growth of the territory and requirements.
  • Recommend methods of implementation in the comprehensive plan.
  • Include a map of the area covered by the comprehensive plan.

Per § 15.2-2230, local planning commissions must review the comprehensive plan every five years to determine if it should be amended.

Per § 15.2-2240, all localities must adopt a subdivision of land ordinance.

Virginia State Allowances

Per § 15.2-2223, all localities may include in the comprehensive plan, but are not limited to, the following subjects for the general development of the territory:

  • Areas for types of public and private development such as:
    • Different kinds of residential housing.
      • Including age-restricted housing.
    • Business.
    • Industrial.
    • Agricultural.
    • Mineral Resources.
    • Conservation.
    • Active and passive recreation.
    • Public service.
    • Floodplain and drainage.
  • A system of community service facilities such as:
    • Parks.
    • Sports playing fields.
    • Forests.
    • Schools.
    • Playgrounds.
    • Public buildings and institutions.
    • Hospitals.
    • Nursing homes.
    • Assisted living facilities.
    • Community centers.
    • Waterworks.
    • Sewage disposal or waste disposal areas.
  • Designation of:
    • Historical areas.
    • Areas for urban renewal.
  • Areas to implement reasonable measures to provide for the continued availability, quality, and sustainability of groundwater and surface water.
  • The following:
    • Capital Improvements Program.
    • Subdivision Ordinance.
    • Zoning Ordinance.
    • Zoning District Maps.
    • Mineral Resource District Maps.
    • Agricultural and Forestal District Maps.
  • The location of existing or proposed recycling centers.
  • The location of:
    • Military bases.
    • Military instillations.
    • Military airports.
    • Adjacent safety areas.
  • Corridors or routes for electric transmission lines of 150 kilovolts or more.

Per § 15.2-2223.1, all localities may designate parts of urban development areas for transfer of development rights programs.

Per § 15.2-2230, local planning commissions may:

  • Study such matters while preparing the comprehensive plan:
    • Use of land.
    • Preservation of agricultural and forestal land.
    • Production of food and fiber.
    • Characteristics and conditions of existing development.
    • Trends of growth or changes.
    • Natural resources.
    • Historic areas.
    • Groundwater and surface water availability, quality, and sustainability.
    • Geologic factors.
    • Population factors.
    • Employment.
    • Environmental and economic factors.
    • Existing public facilities.
    • Drainage.
    • Flood control and flood damage prevention measures.
    • Dam break inundation zones and potential impacts to downstream properties.
    • Transmission of electricity.
    • Broadband infrastructure.
    • Road improvements, and any estimated costs.
    • Transportation facilities.
    • Transportation improvements, and any costs.
    • Need for affordable housing in both the locality and planning district.
    • Any other matters relating to the comprehensive plan.
  • Recommend methods of implementation presented in the following forms, but not limited to:
    • An official map;
    • A capital improvements program;
    • A subdivision ordinance;
    • A zoning ordinance and zoning district maps;
    • A mineral resource map;
    • A recreation and sports resource map; and
    • A map of dam break inundation zones.

Per § 15.2-2230.1, planning commissions may make a study of the public facilities that would be needed if the comprehensive plan is fully implemented. This may include, but is not limited to:

  • Water and sewer lines and treatment plants.
  • Schools
  • Public safety facilities.
  • Streets.
  • Highways.

Per § 15.2-2231, any County plan may include planning of incorporated towns, yet such inclusion shall not be considered as a comprehensive plan for any incorporated town unless recommended by the town commission.

Per § 15.2-2239, planning commissions may, and at the direction of the governing body must, prepare and revise a capital improvement program every year.



  • 15.2-2280. Zoning ordinances generally

Any locality may adopt zoning ordinances to regulate the following aspects:

  • The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses;
  • The size, height, area, bulk, location, erection, construction, reconstruction, alteration, repair, maintenance, razing, or removal of structures;
  • The areas and dimensions of land, water, and air space to be occupied by buildings, structures and uses, and of courts, yards, and other open spaces to be left unoccupied by uses and structures, including variations in the sizes of lots based on whether a public or community water supply or sewer system is available and used; or
  • The excavation or mining of soil or other natural resources.
  • 15.2-2281. Jurisdiction of localities

For the purpose of zoning, the governing body of a county shall have jurisdiction over all the unincorporated territory in the county, and the governing body of a municipality shall have jurisdiction over the incorporated area of the municipality.

  • 15.2-2282. Regulations to be uniform

All zoning regulations shall be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts.

  • 15.2-2283. Purpose of zoning ordinances

Zoning ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public and meeting the objectives of § 15.2-2200. The purposes are as follows:

  • Provide for adequate light, air, convenience of access, and safety from fire, flood, impounding structure failure, crime and other dangers;
  • Reduce or prevent congestion in the public streets;
  • Facilitate the creation of a convenient, attractive and harmonious community;
  • Facilitate the provision of adequate police and fire protection, disaster evacuation, civil defense, transportation, water, sewerage, flood protection, schools, parks, forests, playgrounds, recreational facilities, airports and other public requirements;
  • Protect against destruction of or encroachment upon historic areas and working waterfront development areas;
  • Protect against one or more of the following:
    • Overcrowding of land.
    • Undue density of population in relation to the community facilities existing or available.
    • Obstruction of light and air.
    • Danger and congestion in travel and transportation.
    • Loss of life, health, or property from fire, flood, impounding structure failure, panic or other dangers.
  • Encourage economic development activities that provide desirable employment and enlarge the tax base.
  • Provide for the preservation of agricultural and forestal lands and other lands of significance for the protection of the natural environment.
  • Protect approach slopes and other safety areas of licensed airports.
  • Creation and preservation of affordable housing suitable for meeting the current and future needs of the locality as well as a reasonable proportion of the current and future needs of the planning district within which the locality is situated.
  • Provide reasonable protection against encroachment upon military infrastructure.
  • Provide reasonable modifications in accordance with the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.) or state and federal fair housing laws, as applicable.
  • Reasonable provisions, not inconsistent with applicable state water quality standards, to protect surface water and ground water as defined in § 62.1-255.
  • 15.2-2284. Matters to be considered in drawing and applying zoning ordinances and districts.

Changes to a locality’s zoning map must take into account the following aspects:

  • Existing use and character of property.
  • Comprehensive plan.
  • Suitability of property for various uses.
  • Trends of growth or change.
  • Current and future requirements of the community determined by population and economic studies.
  • Transportation requirements of the community.
  • Requirements for airports, housing, schools, parks, playgrounds, recreation areas and other public services.
  • Conservation of natural resources.
  • Preservation of flood plains.
  • Protection of life and property from impounding structure failures.
  • Preservation of agricultural and forestal land.
  • Conservation of properties and their values.
  • Encouragement of the most appropriate use of land throughout the locality.


Special Zoning Districts

  • 15.2-2294. Airport safety zoning

Any locality containing, or where the approach slopes exist to a licensed airport, United States government or military air facility may adopt an overlay zoning ordinance to regulate the height of structures and natural growth for the safety of air navigation.


  • 15.2-2295.1. Regulation of mountain ridge construction

Any locality that defines protected mountain ridges may regulate the height and location of tall buildings or structures on protected mountain ridges. Such an ordinance may be an overlay zoning ordinance.

A protected mountain ridge is defined as an elevation of 2,000 feet or more and an elevation of 500 feet or more above the elevation of an adjacent valley floor.


  • 15.2-2295.2. Dam break inundation zones

A locality may by ordinance require the modification of an application for a zoning map amendment (rezoning), special use permit, or special exception for land proposed in a mapped dam break inundation zone.


  • 15.2-2305.1. Affordable housing dwelling unit ordinances

Any locality may amend a local zoning ordinance to provide for an affordable housing dwelling unit program. Such an ordinance may authorize the governing body to:

  • Establish qualifying jurisdiction-wide affordable dwelling unit sales prices based on local market conditions.
  • Establish jurisdiction-wide affordable housing dwelling unit qualifying income guidelines.
  • Offer incentives other than density increases, such as reductions or waivers of permit, development, and infrastructure fees, as the governing body deems appropriate to encourage the provision of affordable housing.

Any zoning ordinance establishing an affordable housing dwelling unit program may include reasonable regulations related to the following:

  • To apply the requirements of an affordable housing dwelling unit program to any site or portion of it which yields an equivalent density greater than one unit per acre and located within an approved sewer area.
  • Waiver of fees associated with the construction, renovation, or rehabilitation of a structure.
  • A set of standards of compliance as well as an appeal process.
  • Establishment of a local housing fund.
  • Requiring affordable dwelling units to be built and offered for sale or rental concurrently with construction and certificate of occupancy of a reasonable proportion of market rate units.
  • Administration and regulation by a local housing authority, governing body, or designee.
  • For a local housing authority, governing body, or designee have exclusive right of purchase of up to 1/3 of the for-sale affordable housing dwelling units in a development within 90 days of a dwelling unit being completed and ready for purchase.
  • For a local housing authority, governing body, or designee have exclusive right of leasing up to a specified percentage of the rental affordable dwelling units within a controlled period determined by the local housing authority, governing body, or designee.
  • Establishing jurisdiction-wide affordable housing dwelling unit sales prices by the local housing authority, governing body, or designee initially and adjusted semiannually.
  • Establishment of jurisdiction-wide affordable dwelling unit rental prices by a local housing authority or the local governing body or its designee, initially and adjusted semiannually.
  • Requiring that the prices for the sales and rentals of affordable dwelling units subsequent to the initial sale or rental transaction be controlled by the local housing authority or the local governing body or its designee for a period of not less than 15 years nor more than 50 years after the initial sale or rental transaction for each affordable dwelling unit.

For any building that is four stories or taller and has an elevator, upon the request of the applicant the locality must consider additional costs with living in such a building and determining whether such housing will be affordable.

The local governing body shall have no more than 280 days in which to process site or subdivision plans proposing the development or construction of affordable housing.

The following regulations and provisions must be adopted to establish an affordable housing density bonus and development standards relief program:

  • Adopt procedures for processing an application authorized under this subdivision.
  • The locality shall grant a density bonus when an applicant voluntarily seeks and agrees to construct a housing development that will contain at least:
    • Ten percent of the total units of a housing development deemed affordable.
    • Five percent of the total units of a housing development deemed affordable.]
  • An applicant for a density bonus may request the reduction of local development standards that physically preclude the construction of a project at the density permitted by this section or impact the financial feasibility of a project submitted pursuant to this section.

The sales and rental price for affordable dwelling units within a development shall be established such that the owner or applicant, or both, shall not suffer economic loss as a result of providing the required affordable dwelling units.

Localities cannot condition the submission, review, or approval of any application for a housing development on the basis of an applicant’s decision to incorporate units deemed affordable.


  • 15.2-2306. Preservation of historical sites and architectural areas

Any locality may adopt an ordinance setting forth the historic landmarks within the locality as established by the Virginia Board of Historic Resources, and any other buildings or structures within the locality having an important historic, architectural, archaeological or cultural interest, any historic areas within the locality, and areas of unique architectural value. Such an ordinance may amend an existing zoning ordinance or provide provisions through an overlay zoning district.

The governing body may provide in the ordinance that no historic landmark, building or structure within any district shall be razed, demolished or moved until the razing, demolition or moving thereof is approved by the review board.

The governing body shall provide by ordinance for appeals to the circuit court for such locality from any final decision of the governing body.

The governing body is authorized to acquire in any legal manner any historic area, landmark, building or structure, land pertaining thereto, or any estate or interest therein which, in the opinion of the governing body should be acquired, preserved and maintained for the use, observation, education, pleasure and welfare of the people.

Any locality that establishes or expands a local historic district pursuant to this section shall identify and inventory all landmarks, buildings, or structures in the areas being considered for inclusion within the proposed district.


  • 15.2-2316.2. Localities may provide for transfer of development rights

Any locality by ordinance may, in order to conserve and promote the public health, safety, and general welfare, establish procedures, methods, and standards for the transfer of development rights. Such ordinance must provide for:

  • The issuance and recordation of the instruments necessary to sever development rights from the sending property, to convey development rights to one or more parties, or to affix development rights to one or more receiving properties.
  • Assurance that the prohibitions against the use and development of the sending property shall bind the landowner and every successor in interest to the landowner.
  • The severance of transferable development rights from the sending property.
  • The purchase, sale, exchange, or other conveyance of transferable development rights, after severance, and prior to the rights being affixed to a receiving property.
  • A system for monitoring the severance, ownership, assignment, and transfer of transferable development rights.
  • A map or other description of areas designated as sending and receiving areas for the transfer of development rights between properties.
  • The identification of parcels, if any, within a receiving area that are inappropriate as receiving properties.
  • The permitted uses and the maximum increases in density in the receiving area.
  • The minimum acreage of a sending property and the minimum reduction in density of the sending property that may be conveyed in severance or transfer of development rights.
  • The development rights permitted to be attached in the receiving areas shall be equal to or greater than the development rights permitted to be severed from the sending areas.
  • An assessment of the infrastructure in the receiving area that identifies the ability of the area

to accept increases in density.

  • The application to be deemed approved upon the determination of compliance with the ordinance by the agent of the planning commission.

In order to implement provisions of the act, localities may provide the following in the ordinance:

  • The purchase of all or part of such development rights, which shall retire the development rights so purchased.
  • The severance of development rights from existing zoned or subdivided properties.
  • The owner of such development rights to make application to the locality for a real estate tax

abatement for a period up to 25 years, to compensate the owner of such development rights for the fair market value of all or part of the development rights, which shall retire the number of development rights equal to the amount of the tax abatement, and such abatement is

transferable with the property.

  • The owner of a property to request designation by the locality of the owner’s property as a

“sending property” or a “receiving property”.

  • The allowance for residential density to be converted to bonus density on the receiving

property by an increase in the residential density on the receiving property or an increase

in the square feet of commercial, industrial, or other uses on the receiving property, which upon conversion shall retire the development rights so converted.

  • The receiving areas to include such urban development areas or similarly defined areas in the locality established pursuant to § 15.2-2223.1.
  • The sending properties, subsequent to severance of development rights, to generate one or

more forms of renewable energy, as defined in § 56-576, subject to the provisions of the local zoning ordinance.

  • The sending properties, subsequent to severance of development rights, to produce agricultural products or forestal products, as defined in § 15.2-4302, and to include parks,

campgrounds and related camping facilities.

  • The review of an application by the planning commission to determine whether the application complies with the provisions of the ordinance.
  • Such other provisions as the locality deems necessary to aid in the implementation of the
  • provisions of this act.
  • Approval of an application upon the determination of compliance with the ordinance by the
  • agent of the planning commission.
  • A requirement that development comply with any locality-adopted neighborhood design

standards identified in the comprehensive plan for the receiving area in which the development shall occur, provided such design standard was adopted in the comprehensive plan and applied to the receiving area prior to the transfer of the development right.

The locality may, by ordinance, designate receiving areas or receiving properties, add to, supplement, or amend its designations of receiving areas or receiving properties, or designate receiving areas or receiving properties that shall receive development rights only from certain sending areas or sending properties specified by the locality.

Any proposed severance or transfer of development rights shall only be initiated upon application by the property owners of the sending properties, development rights, or receiving properties as otherwise provided herein.

A locality may not require property owners to sever or transfer development rights as a condition of the development of any property.

The owner of a property may sever development rights from the sending property, pursuant to the provisions of this act.

Development rights severed pursuant to this article shall be interests in real property and shall be considered as such for purposes of conveyance and taxation.

For the purposes of ad valorem real property taxation, the value of a transferable development right shall be deemed appurtenant to the sending property until the transferable development right is severed from and recorded as a distinct interest in real property, or the transferable development right is used at a receiving property and becomes appurtenant thereto.

The owner of a sending property from which development rights are severed shall provide a copy of the instrument, showing the deed book and page number, or instrument or GPIN, to the real estate tax assessor for the locality.

Localities, from time to time as the locality designates sending and receiving areas, shall incorporate the map identified in subdivision B 6 into the comprehensive plan.

No amendment to the zoning map, nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto initiated by the governing body, which eliminate, or materially restrict, reduce, or downzone the uses, or the density of uses permitted in the zoning district applicable to any property to which development rights have been transferred, shall be effective with respect to such property unless there has been mistake, fraud, or a material change in circumstances substantially affecting the public health, safety, or welfare.

A county adopting an ordinance pursuant to this article may designate eligible receiving areas in any incorporated town within such county, if the governing body of the town has also amended its zoning ordinance to designate the same areas as eligible to receive density being transferred from sending areas in the county.

Any county and an adjacent city may enter voluntarily into an agreement to permit the county to designate eligible receiving areas in the city if the governing body of the city has also amended its zoning ordinance to designate the same areas as eligible to receive density being transferred from sending areas in the county.

[1] “Village of Euclid v. Ambler Realty Company.” Oyez. Accessed September 23, 2020.

[2] “Cities 101 — Delegation of Power.” National League Of Cities. Accessed September 23, 2020.’s%20Rule%20is%20derived%20from,sanctioned%20by%20the%20state%20government.

[3] “Village of Euclid v. Ambler Realty Company.” Oyez. Accessed September 23, 2020.