On May 30, 2007, Sprawl-Busters reported that Wal-Mart had become ensnared in a legal mess in the town of Blacksburg, Virginia. The town of Blacksburg adopted land use ordinance 1450, which limits the size of retail buildings in town to 80,000 s.f. Larger buildings require a special use permit issued by the town council. Wal-Mart clearly wants to ignore laws like ordinance 1450. Residents told Sprawl-Busters last year that they had succeeded in getting their zoning law passed. “After a marathon 5-hour public hearing,” citizens wrote, “the Blacksburg Town Council passed, by a 7-0 vote, an ordinance that will require a special use permit for any retail over 80,000 square feet. A grassroots effort by Blacksburg United for Responsible Growth (BURG) brought in petitions with over 3,500 signatures supporting the ordinance. This was more than the total number of votes cast in the last, hotly contested, mayoral election. Speakers at the hearing in favor of the ordinance outnumbered those opposed by a ratio of 8 to 1. Almost all of the opposition to the ordinance came from individuals with a direct stake in a development on South Main Street that includes a Wal-Mart Supercenter. The ordinance gives us the breathing room we need to have the thorough study and public discussion of the best way of regulating big box development. We will be looking at ways to strengthen the protections of the new ordinance. In order to circumvent the new law and the will of the town’s residents, the developers of the South Main project sued the town. They asked the circuit court to retroactively award them vested rights to build their supercenter. We are elated at the unequivocal statement that the Town Council has made, but are still focused on winning the case and stopping this project that would be disastrous for the town.” According to the Virginia Tech Collegiate Times, the new ordinance was designed to give the town council more control over the kind of retail development that occurs in Blacksburg, and make it harder for “big box” retailers, such as the Wal-Mart Supercenter, to move into town. A special use permit would be granted only when a developer can demonstrate to the council that their retail store will be beneficial to the Blacksburg community. The council must first determine if the retailer satisfies light and noise pollution regulations, pedestrian accessibility, traffic density and other standards. The council will be able to impose restrictions on any special permit issued. The new ordinance was proposed in response to a proposal from an Ohio developer to build a 186,000 s.f. Wal-Mart Supercenter. No less than 3 organizations backed the new ordinance: BURG, Citizens First and Downtown Merchants of Blacksburg, all spoke in support of ordinance 1450. According to the newspaper, “hundreds of Blacksburg residents flooded in and out of the meeting throughout the night to voice their opinion of the proposed ordinance.” Virginia Tech students, graduate students, professors, and alumni all spoke in support of the new restrictions. The proposed site is also near the Margaret Beeks Elementary School, and both parents and children raised public safety issues. The developer, Fairmont Development Company, took its case to Montgomery County Circuit Court, arguing that the town cannot apply the new ordinance to their Wal-Mart project, because the rezoning ordinance for their project passed prior to ordinance 1450, and the Wal-Mart should therefore be “grandfathered.” As this case meandered through the courts, both the town and Wal-Mart opponents ended up filing appeals to stop or control the superstore project. The Town Council has been seeking the ability to strictly regulate or stop the big-box project using ordinance 1450. The Blacksburg Board of Zoning Appeals voted in favor of the developer, and the developer won the first round in Montgomery County Circuit Court. But the town council, and the anti-Wal-Mart group BURG appealed to the Virginia Supreme Court. Sprawl-Busters reported on September 1, 2008 that Virginia Supreme Court. Justice Barbara Milano indicated that the Supreme Court would hear the appeals of the town and BURG against Wal-Mart. Justice Milano said the court would likely grant two appeals seeking to block construction of the superstore. The court convened what is called a “writ panel” which decides which of the appeals which have been filed will actually be accepted for hearings. The acceptance of the anti-Wal-Mart appeals is the first major step forward for the town and the citizen’s group. On Friday, February 27th, almost six months after the Virginia Supreme Court took the case, residents in Blacksburg got some very good news. “I just wanted to alert you,” wrote Daniel Breslau, Chair of the BURG Steering Committee, “that the Virginia Supreme Court released an unequivocal and resounding opinion this morning overturning the Blacksburg BZA and a circuit court, and ruling that developers have no vested right to proceed with a 186,00 square foot supercenter. They must now comply with the ordinance we passed in May of 2007 requiring a special use permit for any retail establishment over 80,000 square feet (we have since had this reduced to 50,000). In their decision, the Supreme Court wrote: “We hold that the circuit court erred in ruling that the BZA correctly determined that the developers had a vested right to develop on the property structures for retail sales in excess of 80,000 square feet of gross floor space without the necessity of first obtaining a special use permit. Accordingly, we will reverse the judgment of the circuit court affirming the decision of the BZA, reinstate the determination of the Zoning Administrator that a special use permit will be required for a Retail Sales, Large Format use of the property, and enter final judgment here for the Town and the residents.” The Court points out that “when a landowner has only a future expectation that he will be allowed to develop his property in accord with its current classification under the local zoning ordinance, there is no vested property right in the continuation of the land’s existing zoning status.” The court also noted that “a landowner’s rights shall be deemed vested in a land use and such vesting shall not be affected by a subsequent amendment to a zoning ordinance when the landowner (i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.” The Court said these three conditions must all be met “before the right to maintain a permissible use in the future will be deemed to have vested.” The developer tried to argue that the town had “affirmatively acted” to accept their large retail project, and therefore they should not be subject to a zoning amendment made after the town had accepted certain ‘proffers’ from the developer. In Virginia, “proffers” are voluntary commitments made by landowners in order to facilitate approval of conditional zoning and rezoning requests by mitigating the impact of development of their property on the character and environment of adjoining land. The crux of the argument, the Court wrote, was that “developers assert that prior to the May 29, 2007 amendment of the zoning ordinance creating the Retail Sales, Large Format special use classification, by their good faith reliance on the May 9, 2006 rezoning ordinance and incurring obligations and expenses to advance the project, they acquired a vested right to develop the property under the previously unrestricted retail sales classification of the General Commercial District. We disagree.” The court said the “proffers” have to mention a specific use of the land — which in this case they mentioned residential and not retail. “We reject the developers’ contention that the prohibition of eight specific uses by the proffers in this case constitutes a specific reservation of a right to all other uses permissible in the General Commercial District,” the court wrote. After reviewing the proffers offered by the developer, the Court concluded, “There is simply no language in the proffers… that would ‘specify use’ so that it could be found the developers clearly intended to reserve, or the Town intended to be bound to, a vested right for an unrestricted retail sales use of the property. “The developers were not the beneficiaries of a significant affirmative governmental act based on acceptance of proffers that specified retail sales as the particular use for which they subsequently sought to establish a vested right, nor did the Town’s acceptance of the limitation on residential density as part of the proffers provide the developers with a vested right to non-residential uses of the property, including unrestricted retail sales,” the Court concluded.
According to BURG, “The court has ruled unequivocally in our favor! Fairmount Properties has no vested right to build a 186,000 retail supercenter next to Margaret Beeks elementary school. The efforts of thousands of Blacksburg’s residents who spoke before Town Council, signed petitions, educated their fellow citizens, and mounted a costly legal battle, have paid off.” In the months leading up to this decision, the media in Virginia has been predicting that this court ruling could be a landmark decision on the side of granting communities the right to regulate developments in Virginia, versus the rights of property owners to develop land as they wish. Blacksburg Mayor Ron Rordam hailed the court’s decision as a victory for all local governments in Virginia. He said it reaffirms the town’s power to plan for its future. This decision actually rests on a fairly narrow point of Virginia law — whether or not ‘proffers’ for a specific use had been properly made to tie the town’s hands. But if there had been no appeal by the citizens, there would be a Wal-Mart supercenter under construction today. The absurdity of this town’s situation is that Wal-Mart already has a superstore less than 5 miles away in Christiansburg, Virginia, and a second superstore less than 11 miles away in Radford, Virginia. So the residents in this community of 41,300 people have several alternatives if they need access to cheap, Chinese imports. Readers are urged to email Blacksburg Mayor Ron Rordam at [email protected] with the following message: “Dear Mayor Rordam, Thanks to you and the town council for standing up to Wal-Mart in the Virginia Supreme Court. I am thrilled that the High Court has affirmed your decision, and that of the group BURG. A 186,000 s.f. Wal-Mart was the wrong size, and in the wrong place. It’s an example of suburban sprawl that has no place in Blacksburg. Your community already has two Wal-Mart supercenters within 11 miles, and those facilities are certainly within an easy distance of Blacksburg. The Supreme Court has confirmed your power to control the size, look and impact of this superstore using ordinance 1450. Please continue to fight for local land use controls, so that big corporations have to fit into small towns, and not the reverse.” Your special permit requirement should be converted into a 50,000 s.f. cap on size, which many other cities and towns have adopted, to prevent this kind of court challenge in the future.” For more background on this legal decision, or to find out how to help BURG pay off its legal bills, go to www.bburg.org. Readers are encouraged to help the group pay off its bills by making a contribution to BURG.