If a Virginia county downzones some property but upzones other property at the same time (no net loss of lots), does it still have to mail notice to every owner being downzoned?

Plain-English summary

Bedford County proposed eliminating a twenty-acre agricultural subdivision provision from its zoning ordinance, which would constitute a downzoning of numerous properties. The county was also considering other zoning amendments that would increase the number of subdividable lots in certain parts of the county. The combination would result in "no net loss" of subdividable lots county-wide. More than 600 lots or parcels were affected. Not all properties facing downzoning would receive offsetting density increases.

Delegate Putney asked: does the county still have to send individual mailed notice to every landowner facing a downzoning, when the aggregate effect of all the proposed changes is net-zero?

The AG said yes.

The statute, Va. Code § 15.2-2204(B), is clear:

When a proposed amendment of the zoning ordinance involves . . . a change to the applicable zoning ordinance text regulations that decreases the allowed dwelling unit density of any parcel of land, then, in addition to the advertising as above required . . . written notice shall be given by the local planning commission, or its representative, at least five days before the hearing to the owner, owners, or their agent of each parcel of land involved.

The key words are "any parcel of land" and "each parcel of land involved." The General Assembly chose parcel-by-parcel language. Nothing in the statute permits a locality to net out density gains on some parcels against density losses on others.

The AG's interpretive analysis:

• Plain meaning controls (Conger, Cuccinelli v. UVA).
• The General Assembly's focus on "each parcel" is intentional; courts cannot rewrite the statute to add an aggregation or offsetting rule.
• The underlying policy is due process: landowners must have notice before zoning changes that decrease their property rights.

The AG also cited the broader "delicate balance" framing from Board of Supervisors v. Horne (1975): zoning enabling legislation tries to balance individual property rights against the general welfare. Notice and opportunity to be heard are essential parts of that balance. A locality that aggregated parcels to skip notice would short-circuit due process.

So Bedford County (and every Virginia locality) has to mail notice to each owner of every parcel whose density is decreased by a proposed amendment, no matter what concurrent amendments are doing elsewhere. For 600+ parcels, that means 600+ individual mailings.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Va. Code § 15.2-2204 has been amended multiple times since 2013, with adjustments to notice requirements, deadlines, and content. The general parcel-by-parcel notice principle has been preserved. Verify current statutory text before planning a major zoning change.

Common questions

What is downzoning?
A zoning change that reduces the allowed uses or density of property. Typical example: changing residential parcels from allowing one dwelling per quarter-acre to one dwelling per acre, reducing the number of houses that can be built.

Why does notice matter?
Because downzoning reduces property rights and affects property value. Owners need a fair opportunity to attend the hearing, voice objections, and consider their options (which may include challenging the rezoning in court). Without notice, the change can happen without meaningful owner participation.

What if I miss the notice?
The five-day notice requirement is just a minimum. The locality usually has to advertise more broadly in the paper as well. But if the locality failed to mail you the individual notice and you can demonstrate prejudice, you may have a basis to challenge the downzoning's validity as to your parcel.

What if the county already mailed notice to some owners?
The opinion does not address partial notice situations. As a defensive matter, a locality would want to either mail notice to all affected owners or pull the amendment, rather than risk a successful challenge by owners who didn't get notice.

Does "no net loss" matter at all?
For purposes of the notice requirement, no. The statute is parcel-by-parcel. "No net loss" is a substantive concept that might be relevant to how a planning commission justifies the overall plan, but it doesn't change procedural notice rules.

What if my parcel is getting upzoned, not downzoned?
The mailed-notice requirement in § 15.2-2204(B) applies only to downzonings of "any parcel of land." Upzonings have different notice rules (usually just the standard public advertisement, not individual mailings).

Does this apply to text amendments or just map amendments?
The statute applies to "a change to the applicable zoning ordinance text regulations that decreases the allowed dwelling unit density of any parcel of land." So a text amendment that reduces density is covered. The Bedford County proposal was a text amendment.

Can the planning commission delegate the mailing to someone else?
The statute says "by the local planning commission, or its representative." So yes, the commission can have staff or a contractor handle mailings, but the responsibility rests with the commission.

Background and statutory framework

• Va. Code § 15.2-2204(B): written notice requirement for downzonings.
• Va. Const. art. I, due process protections: underlying constitutional foundation.

The interpretive moves:

• Statutes addressing the same subject must be read together (Va. Real Estate Bd. v. Clay).
• Plain language unambiguous; no resort to construction (Cuccinelli).
• Courts cannot rewrite statutes to add provisions the General Assembly omitted (Commonwealth v. Anderson).
• Property rights protected by procedural notice; the "delicate balance" recognized in Horne.

Citations

• Va. Code § 15.2-2204(B)
• Conger v. Barrett, 280 Va. 627, 702 S.E.2d 117 (2010)
• Turner v. Commonwealth, 226 Va. 456, 309 S.E.2d 337 (1983)
• Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622 (1989)
• Commonwealth v. Anderson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Bd. of Supvrs. v. Horne, 216 Va. 113, 215 S.E.2d 453 (1975)
• 1981-82 Op. Va. Att'y Gen. 464
• 2007 Op. Va. Att'y Gen. 50

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-045_Putney.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 23, 2013

The Honorable Lacey E. Putney
Member, House of Delegates
Post Office Box 127
Bedford, Virginia 24523

Dear Delegate Putney:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

In your request, you specifically ask, "Does a municipality have the right to aggregate differing and other rezoning proposals by alleging no net loss of subdividable lots under new rezoning in order to avoid sending written notice to directly affected landowners subject to proposed downzoning as require by [§ 15.2-2204(B) of the Code of Virginia]?" Thus, in other words, you inquire whether § 15.2-2204(B) requires a local planning commission to give written notice to the owner of each parcel of land involved in a downzoning when other rezoning proposals under consideration include increases in density allowances that, when considered in conjunction with the downzoning, result in no net loss of subdividable lots in the locality.

Response

It is my opinion that § 15.2-2204(B) of the Code of Virginia requires a local planning commission to give written notice to the owner of each parcel of land involved in a downzoning under the circumstances you present.

Background

You indicate that Bedford County's Board of Supervisors proposes eliminating a twenty-acre agricultural subdivision provision contained in the county's current zoning ordinance. You further state that this change would constitute a downzoning of numerous properties in the county. The county is also considering other amendments to the zoning ordinance that would increase the number of subdividable lots in certain portions of the county. These increases would offset the loss of subdividable lots eliminated by the downzoning, thereby resulting in no net loss of subdividable lots in the county. In all, you indicate that more than 600 lots or parcels would be affected by the proposed rezonings. You also indicate that not all of the properties affected by the downzoning would receive an offsetting increase in subdividable lots from the other proposed rezoning actions.

Applicable Law and Discussion

Section 15.2-2204(B) provides, in pertinent part, that:

When a proposed amendment of the zoning ordinance involves . . . a change to the applicable zoning ordinance text regulations that decreases the allowed dwelling unit density of any parcel of land, then, in addition to the advertising as above required . . . written notice shall be given by the local planning commission, or its representative, at least five days before the hearing to the owner, owners, or their agent of each parcel of land involved ....

"The primary objective in statutory construction is to ascertain and give effect to legislative intent[,]"[1] and "[i]n construing statutes, courts should give the fullest possible effect to the legislative intent embodied in the entire statutory enactment."[2] Courts "must determine legislative intent by what the statute says and not by what [the court] think[s] it should have said."[3] Finally, "[w]hen the language of a statute is unambiguous, we are bound by the plain meaning of that language."[4]

The plain language of § 15.2-2204(B) provides that notice must be mailed to affected landowners if the zoning ordinance text amendment "decreases the allowed dwelling unit density of any parcel of land."[5] When enacting § 15.2-2204, the focus was placed on the rights adhering to each parcel of land and the General Assembly included no provisions allowing a locality to modify the requirement to notify landowners by offsetting the proposed decrease in the allowed dwelling unit density on some properties with proposed increases in density allowances on other properties. Instead, the statute clearly specifies that the owners of each individual parcel affected by a proposed decrease in allowed development density are entitled to notice prior to reductions in those density allowances. Accordingly, the plain and unambiguous terms of the statute require that individual notice must be mailed to the owners of all parcels of land affected by any proposed downzoning at least five days prior to the hearing on the proposed downzoning.[6]

In enacting zoning enabling legislation, "the General Assembly of Virginia has undertaken to achieve ... a delicate balance between the individual property rights of its citizens and the health, safety and general welfare of the public as promoted by reasonable restrictions on those property rights."[7] "Critical to this balance is ensuring that landowners have notice and opportunity to be heard when zoning ordinances will change the permitted use of land."[8] This notice is an essential component of due process and a prerequisite to actions adversely affecting a citizen's property rights. Thus, a locality must adhere to applicable statutory notice requirements.

Conclusion

Accordingly, it is my opinion that § 15.2-2204(B) of the Code of Virginia requires a local planning commission to give written notice to the owner of each parcel of land involved in a downzoning, notwithstanding the fact that other rezoning proposals under consideration include increases in density allowances which, considered in conjunction with the downzoning, result in no net loss of subdividable lots in the locality.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

[1] Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117 (2010) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)) (further citation omitted).

[2] Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989).

[3] Commonwealth v. Anderson, 281 Va. 414, 421, 706 S.E.2d 879, 884 (2011) (quoting Virginian-Pilot Media Cos., LLC v. Dow Jones & Co., 280 Va. 464, 469, 698 S.E.2d 900, 902 (2010)) (further citation omitted).

[4] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)) (further citation and internal quotation marks omitted).

[5] Va. Code Ann. § 15.2-2204(B) (Supp. 2013) (emphasis added). See 1981-82 Op. Va. Att'y Gen. 464, 464 (finding that notice requirements of predecessor statute to § 15.2-2204 are plain and must be satisfied).

[6] Id.

[7] Bd. of Supvrs. v. Horne, 216 Va. 113, 120, 215 S.E.2d 453, 458 (1975).

[8] 2007 Op. Va. Att'y Gen. 50, 51.