What is Grandfathering?

What is "grandfathering"?
Grandfathering is a legislative decision by the Board of Supervisors to retain old zoning regulations for land applications beyond what is protected by state law. (For existing protections under state law, see information on vested rights in the next answer.)
Recent subdivision applications in the rural area

What must a landowner do under Virginia law to claim a vested right?
By an amendment to the state zoning law passed by the legislature in 1998, a landowner has a vested right to improve his property according to existing zoning rules only if he meets three specific requirements:

1) The landowner must have obtained a "significant affirmative governmental act," as early in the land application process as preliminary subdivision approval for development of that specific property.

2) The landowner must have "relied in good faith" on that government action.

3) The landowner must have already incurred "substantial expenses" in pursuing the actual construction of that specific, approved project. So, for example, if a landowner has received a valid building permit and has started construction of a house, the county cannot order him to tear down the house or stop construction, even if it does not conform to the new zoning regulations.

In such cases, the landowner is said to have a "vested right" that cannot be affected by subsequent government action to make those specific, previously approved improvements.

Is purchasing a property with the intention of developing it sufficient to claim a vested right to develop that property?
Definitely not. Simply buying land, or incurring expenses necessary to file an application for development (for example, conducting perc or well tests, or preliminary engineering studies for a subdivision prior to filing an application) is not sufficient under Virginia state law. The law explicitly requires that "substantial expenses" or "extensive" financial obligations must be incurred on the specific project for which approval has been obtained. The Attorney General of Virginia reiterated in a 2004 decision that a landowner has no vested rights merely in an "anticipated use" of his land and no property right to have a parcel's current zoning status remain unchanged.

What is the Planning Commission proposing?
In contrast to the letter and spirit of Virginia state law, the Loudoun County Planning Commission has recommended opening a huge loophole that would "grandfather" hundreds of subdivision plans that were hurriedly filed in the last year. Under the Planning Commission proposal, now under review by the Board of Supervisors, even applications that have not yet been fully approved for preliminary subdivision at the time the new rural zoning ordinance is adopted would be exempted from the new rules.

How many houses could be built in western Loudoun under this proposed "grandfather clause" loophole?
In March 2005, the zoning of much of rural Loudoun County reverted to A-3, or one house per three acres, when the previous rural zoning ordinance was invalidated on a procedural technicality. Even though the Board of Supervisors quickly made known its intention to correct this procedural flaw and reinstate rural zoning to limit development, hundreds of developers rushed to try to get site plans approved before the lower density limits could be reinstated. There are currently pending applications for more than 1,000 new lots in western Loudoun seeking to exploit this loophole.

What is wrong with the Planning Commission's grandfather proposal?
Virginia state law already recognizes that as a matter of fairness and equity, landowners who have played by the rules and acted in good faith should not be penalized when zoning policy changes. The developers who rushed to file applications for high-density development in western Loudoun during the last year have been trying to take advantage of a legal loophole that they knew would be open for only a limited time. They took a gamble that they could have their applications approved before lower-density rural zoning was reinstated. Now that that window is about to close, they are trying to save that losing gamble by having the law changed specially for them. Grandfathering these applications, beyond current protections under the state law, is fundamentally unfair to the overwhelming majority of landowners who have played by the rules.