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Virginia's Stance on Third-Party Challenges to Local Land Use Decisions

February 2009

Citation: ELR 10104

Author: Philip Carter Strother

Not long ago, many members of Virginia's land use bar operated under the assumption that Virginia's Declaratory Judgment Act was the proper vehicle for challenging local land use decisions. The Virginia Declaratory Judgment Act provides that "[i]n cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right.... Controversies involving the interpretation of... municipal ordinances and other governmental regulations, may be so determined...." Even though the declaratory judgment statutes do not create any independent right-of-action, this position appeared, until recently, to be consistent with other Virginia law affording citizens the right to sue localities for controversies related to governmental duties. The apparent consistency is because a large array of duties related to land use is imposed on counties and municipalities in Virginia by the state Code. As such, a comprehensive scheme for challenging municipalities in the execution of those duties made sense. It was also seemingly consistent with statutory and common-law precedent for aggrieved persons other than the subject landowner to challenge local government land use decisions. In a series of recent decisions, however, the Virginia Supreme Court has addressed this assumption and answered in the negative.

Philip Carter Strother is the founder and principal of Strother Law Offices, PLC. He thanks Matthew Farley, a 2010 J.D. candidate at The University of Richmond School of Law, for assistance in researching, drafting, and editing.

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