Norfolk 102, LLC v. City of Norfolk, 738 S.E.2d 895

Background

Bar Norfolk, LLC and Norfolk 302, LLC operate Bar Norfolk and Have a Nice Day Café in Waterside, Norfolk, and challenged the City Council's 2009 revocation of a blanket special exception and denial of individual applications.
The 1999 Ordinance granted a blanket special exception for Entertainment Establishments at Waterside; subsequent 1992 zoning and 1997 definitions created the regulatory framework for Eating/Entertainment Establishments.
Bar Norfolk and the Café opened in 1999 as Entertainment Establishments and held ABC licenses, with documents titled 'Zoning Clearance' listing Eating Place, an use category not in effect for their premises.
In 2009, the City decided to revoke the blanket 1999 exception and require individual special exceptions; it also proceedings to revoke the blanket exception and denied the individual applications.
The circuit court denied relief and held no vested rights existed; the Virginia Supreme Court affirmed, finding no vested rights and no due process violation, given notice and opportunity to be heard.
The central issue is whether the plaintiffs had vested rights to operate as Entertainment Establishments and sell alcohol for on-premises consumption under the pertinent ordinances.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bar Norfolk and the Café had vested rights to operate as Entertainment Establishments	Bar Norfolk and the Café relied on Code § 15.2-2307 and the 1983 Ordinance for vested rights to an impermissible use	City contends no vested rights because the 1983 use did not allow Entertainment Establishments for most of their premises and no valid 2311(C) determination existed	No vested rights under either statute; vesting requires a permissible use and the 1983 use did not cover their premises.
Whether Bar Norfolk and the Café had vested rights under Code § 15.2-2311(C) from the Cash Receipt determinations	Cash Receipt and reliance created a 2311(C) vesting in an Entertainment Establishment use	Cash Receipt did not reflect a determinate authorization to use premises in an impermissible manner; acquiescence is insufficient	No vesting under 2311(C); Cash Receipt did not constitute a binding determination for a nonconforming or vested use.
Whether the City Council violated statutory notice or due process in revoking the 1999 Ordinance	Notice was inadequate under Code § 15.2-2204 and due process was violated	Bar Norfolk and Café had actual notice and participated; notice requirements were waived	No statutory notice violation; actual notice and participation waived due process concerns.
Whether the BZA correctly found no vested rights for Bar Norfolk and the Café	Vested rights existed under prior approvals and acquiescence	No significant affirmative governmental act or 2311(C) basis; uses were not permissible	BZA correctly found no vesting rights.

Key Cases Cited

Goyonaga v. Bd. of Zoning Appeals, 275 Va. 232, 657 S.E.2d 153 (2008) (vested rights require a permissible use and substantial reliance)
Board of Zoning Appeals v. CaseLin Sys., Inc., 256 Va. 206, 501 S.E.2d 397 (1998) (vested rights in permissible uses; reliance on prior approvals)
Crucible, Inc. v. Bd. of Supervisors, 278 Va. 152, 677 S.E.2d 283 (2009) (significant governmental acts; vesting analysis)
Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975 (1990) (due process and notice requirements in deprivation of property)
Dusenbery v. United States, 534 U.S. 161, 122 S. Ct. 647 (2002) (due process and notice protections for property interests)
L.F. v. Breit, 285 Va. 163, 736 S.E.2d 711 (2013) (de novo review of legal questions; statutory notice analysis)
Shilling v. Baker, 279 Va. 720, 691 S.E.2d 806 (2010) (de novo review of land-use vesting issues)