Effective July 1, 2014, Virginia landowners will have a new mechanism to use to protect their interests when seeking zoning or subdivision approvals. On April 6, 2014, Governor McAuliffe signed SB 578 into law (which will be codified as Virginia Code section 15.2-2208.1). SB 578 provides that an applicant who is disappointed by the grant or denial by a local government entity of any approval or permit, where such grant included, or denial was based upon, an unconstitutional condition, shall be entitled to an award of compensatory damages and may be awarded reasonable attorney fees and costs. The bill creates a presumption that a condition proven to be unconstitutional was a factor in the grant or denial of the permit. The bill also provides that the applicant shall be entitled to an order remanding the matter to the local government with a direction to grant or issue such permits or approvals without the unconstitutional condition.

For Virginia landowners, SB 578 provides a damages remedy for applicants seeking zoning or subdivision approvals and who are faced with accepting the imposition of unconstitutional conditions as the price for such approval. The law provides the following tools for Virginia landowners seeking zoning or subdivision approvals:

  • Compensatory damages, and potential attorney’s fees and costs, for permits that are granted or denied based upon the imposition of a condition that is unconstitutional under either the United States Constitution or the Virginia Constitution.
  • The Court must remand the application back to the local government with instructions to grant a permit or approval without the unconstitutional condition. Where an applicant proves the condition is unconstitutional and objected in writing to the condition before the application was granted or denied, the court must presume that the applicant’s acceptance or refusal to accept the condition was the controlling basis for the local government granting or denying the permit.

If the applicant appeals the grant or denial to the Circuit Court in a timely manner, then the court must hear the case “as soon as practical.” SB 578 will apply to any approvals or permits that are granted or denied on or after July 1, 2014 and will not be applied retroactively.