Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., Poff, Senior Justice 

TOWN OF ROCKY MOUNT 

v. Record No. 962021 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 6, 1997 

SOUTHSIDE INVESTORS, INC. 

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY 

B.A. Davis, III, Judge 

 The sole issue in this appeal is whether a landowner 

acquired a vested right to build townhouses on its property 

before a zoning ordinance was amended to require a special use 

permit for such development. 

 Southside Investors, Inc. (Southside), initiated an action 

against the Town of Rocky Mount, challenging a 1995 amendment to 

the Town's zoning ordinance. The trial court heard the following 

evidence in a bench trial. 

 In July 1985, Southside purchased a 5.5 acre tract of 

property located on Herbert Street in the Town of Rocky Mount. 

About one month later, Southside obtained a rezoning of the 

property from R-1 to R-2, a residential use classification in 

which townhouses were a use permitted by right. 

 After the rezoning, Southside constructed two four-unit 

townhouse buildings on the north side of Herbert Street. 

Southside extended Herbert Street and installed water and sewer 

lines to accommodate these townhouse units, but did not file a 

site plan to develop the remaining portion of its parcel located 

on the south side of Herbert Street. However, the street 

extension and the water and sewer lines were adequate to serve 

future development on the south side of the street. 
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 In 1995, the Town amended the zoning ordinance to remove 

townhouses as a use permitted by right in an R-2 district and to 

allow such development only by special use permit. Christopher 

Lee Whitlow, the Town's planning and zoning administrator, 

testified that in an R-2 district, multiple-family developments, 

such as townhouse complexes, were not consistent with "the 

overall scheme of the [T]own plan." 

 Southside asserted that it had a vested property right to 

construct townhouses on the undeveloped portion of its property. 

 The trial court agreed, stating that "a conveyance has been 

made, substantial expense has been incurred and a hardship will 

be worked if further permit applications and delays are mandated 

prior to the building of additional townhouse units." The trial 

court also observed that Southside already had constructed 

townhouses on part of the original 5.5 acre parcel, and that 

there had been no evidence Southside had failed to comply with 

the Town's "building and structural requirements." Therefore, 

the court ruled that, based on Southside's vested property right, 

the 1995 amendment was null and void as to the subject parcel. 

 On appeal, the Town contends that the trial court erred in 

holding that Southside had a vested right to construct townhouses 

when it did not file a site plan or take any other significant 

action to develop the remainder of the tract prior to the 1995 

zoning amendment. The Town asserts that Southside cannot rely on 

its earlier expenditures for extending the street, water lines, 
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and sewer capabilities, because these improvements were made to 

service the existing townhouses. 

 In response, Southside argues that the 1985 rezoning of its 

original parcel was a significant governmental act which gave 

Southside a vested right to construct additional townhouses. 

Southside asserts that, in reliance on this governmental act, it 

incurred substantial expense by extending Herbert Street and by 

installing water and sewer lines. Southside also contends that 

it diligently pursued development of its property by obtaining 

zoning and building permits for the existing townhouses. We 

disagree with Southside's arguments. 

 A landowner who asserts a vested property right to a 

particular zoning classification must identify a significant 

governmental act permitting the landowner the particular use of 

its property that otherwise would not be allowed. Holland v. 

Board of Supervisors, 247 Va. 286, 289, 441 S.E.2d 20, 21-22 

(1994); Town of Stephens City v. Russell, 241 Va. 160, 164, 399 

S.E.2d 814, 816 (1991); Fairfax County v. Cities Service, 213 Va. 

359, 362, 193 S.E.2d 1, 3 (1972); see Board of Supervisors v. 

Trollingwood Partnership, 248 Va. 112, 115-16, 445 S.E.2d 151, 

153 (1994). The requirement of a significant governmental act 

creates a bright line test that enables the landowner to 

determine the point at which it has acquired the vested right. 

Holland, 247 Va. at 292, 441 S.E.2d at 23. 

 The facts in the present case are similar to those in 
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Trollingwood Partnership. There, the landowner asserted that its 

site plans for earlier phases of a development were sufficient to 

create a vested property right permitting the landowner to expand 

its development to an additional portion of the original parcel 

for which no site plan had been approved. We held that the 

landowner’s failure to obtain site plan approval for the new 

construction before the property was rezoned defeated its vested 

rights claim. 248 Va. at 115-16, 445 S.E.2d at 152-53. 

 Similarly, in Russell, a landowner contended that he had 

acquired a vested right in a prior zoning classification after an 

amendment effectively reduced the number of apartment units that 

he could build on his land. 241 Va. at 162, 399 S.E.2d at 815. 

He claimed a vested right to build the number of units permitted 

under the former zoning ordinance, despite the fact that he had 

failed to obtain the required approval of his subdivision plat 

and site plan before the ordinance was amended. We held that the 

landowner's failure to obtain any type of governmental permit or 

approval before the ordinance was amended was fatal to his claim. 

Id. at 164-65, 399 S.E.2d at 816. 

 Applying this principle to the present case, we conclude 

that Southside does not have a vested right to construct 

additional townhouses on its property because it has failed to 

identify any significant governmental act approving its proposed 

development before the 1995 zoning amendment. We find no merit 

in Southside’s contention that the 1985 amendment, rezoning the 
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property from the R-1 to R-2 classification, is such a 

governmental act. That amendment merely changed zoning 

classifications and did not authorize any specific plan for 

development of the property. A significant governmental act, as 

contemplated by our decisions set forth above, authorizes the 

specific use to be made of the property, rather than the general 

categories of development allowed in a given zoning 

classification. 

 Southside's earlier expenditures for street, water, and 

sewer improvements are not relevant to this inquiry, because they 

were made in conjunction with the previous townhouse 

construction. The fact that some of these improvements may be 

utilized in future development of the property does not alter our 

conclusion, since they were not approved as part of a site plan 

or permit for the undeveloped portion of the property. Thus, we 

conclude that the trial court erred in holding that Southside 

acquired a vested right under the Town’s 1985 zoning ordinance. 

 For these reasons, we will reverse the trial court's 

judgment and enter final judgment in favor of the Town. 

Reversed and final judgment.