On April 8, 2025, for the first time since its jurisdiction was expanded, the Court of Appeals of Virginia addressed in detail the doctrine of vested rights in the context of a zoning dispute in Board of Supervisors of Prince Edward Cnty., Virginia v. Bowman. In a unanimous panel decision, the Court of Appeals affirmed the application of the doctrine by the Prince Edward County Board of Zoning Appeals (BZA) to invalidate a notice of zoning violation issued by the Board of Supervisors of Prince Edward County. In doing so, the Court of Appeals confirmed the broad scope of the doctrine of vested rights in Virginia — even to shield against actions claiming that the initial zoning approval was void ab initio.
A building official for Prince Edward County approved a permit application for construction of a flagpole. Once construction was complete, the owners displayed a Confederate flag on the flagpole. The Board of Supervisors of Prince Edward County received numerous complaints and subsequently had an assistant zoning administrator issue a zoning violation regarding the flagpole due to alleged clerical errors on the permit. The Board of Supervisors also questioned whether the building official had the authority to issue the permit, and that the permit was therefore void ab initio. The landowners appealed to the BZA and asserted the flagpole was protected by Code § 15.2-2311 because their rights had vested.
The BZA agreed with the landowners. The Board of Supervisors appealed to Prince Edward County Circuit Court and asserted the same arguments. The circuit court affirmed the BZA, finding that the landowners established their rights had vested.
The Court of Appeals affirmed. In a unanimous panel decision authored by Judge Dominique Callins and joined by Judge Richard AtLee and Judge Frank Friedman, the Court of Appeals provided its most complete summary to date of the background of the doctrine of vested rights in Virginia, including key precedents from the Supreme Court of Virginia. The panel rejected without addressing the Board’s void ab initio argument because of its conclusion that a vested right controls even in such a scenario. The panel noted that the Supreme Court of Virginia has made clear that the vested rights statutes in Title 15.2 of the Code of Virginia are intended to be remedial and therefore must be liberally construed in order “to eliminate the hardship property owners have suffered when they rely to their detriment upon erroneous or void zoning decisions.”
The panel then analyzed the four key statutory provisions in a vested rights analysis: (i) whether the claimed vested right stems from a written order, requirement, decision, or determination; (ii) whether the claimed vested right was issued by the appropriate officer (and whether that even matters); (iii) whether there was the good faith reliance necessary to create a vested right; and (iv) whether the Board’s post hoc assertion of a clerical error may defeat a vested right. Finally, the Court of Appeals discussed and analyzed the burden of proof a property owner has when asserting a vested rights claim. On each of these issues, the Court of Appeals held for the landowner against the Board and affirmed the judgment of the circuit court.
The doctrine of vested rights is an under-appreciated and under-utilized concept in land use and zoning matters. This decision by the Court of Appeals confirms that the doctrine is alive and well in Virginia and should be considered when defending against challenges to building projects in Virginia.
Robert Loftin is a partner with McGuireWoods in Richmond, Virginia. A first-chair appellate and trial lawyer, Robert regularly advises and represents clients, including land use and zoning clients, in administrative proceedings, litigation matters in Virginia’s circuit courts, and appeals before the Court of Appeals of Virginia and Supreme Court of Virginia.
John Woolard is an associate with McGuireWoods in Richmond, Virginia. As a trial litigator and appellate advocate, John represents clients in Virginia and across the nation, with a focus on land use, fiduciary, and complex commercial litigation matters.