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Nothing in My Back Yard? The Case Against Expanding Third-Party Rights to Challenge Local Land Use Decisions in Virgina

February 2009

Citation: 39 ELR 10110

Issue: 2

Author: Robert Jackson Allen

In April of 2008, the Virginia Supreme Court handed down its ruling in Logan v. City Council of the City of Roanoke. In its unanimous decision, the court resolved an issue that was frequently contested in cases involving citizen challenges to local land use actions such as subdivision approvals. The question addressed in Logan was whether third-party neighboring landowners possessed a right-of-action to bring a socalled NIMBY lawsuit seeking to overturn the approval of a subdivision decision they opposed. Before Logan, members of the land use bar representing local governments and developers sought to quash lawsuits by neighbors contesting subdivision approvals by arguing for a strict construction of the applicable statute that did not specify a right of appeal for third parties. Plaintiff attorneys representing the neighbors contended that the Virginia Declaratory Judgment Act authorized the neighbors' right-of-action.

This Article summarizes the law relating to third-party challenges to local land use decisions in Virginia and provides commentary responding to the suggestion that third-party rights of action should be expanded. Part I reviews the primary statutory provisions for appealing planning, subdivision, and zoning decisions in Virginia. Part II discusses the evolution of declaratory judgment actions as vehicles for third-party challenges to planning and subdivision decisions from 1990 to April 18, 2008, when the Logan decision was handed down. Discussion and legal analysis of whether the current state of the law should be changed by legislation is contained in Part III, and Part IV contains conclusions and final thoughts.

Robert Jackson Allen is an attorney with Spotts Fain PC, a law firm with offices in Richmond, Virginia, and in the town of Irvington in Virginia's Northern Neck.

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