King George BZA upholds zoning administrator response as timely and says administrator lacks authority to decide Amazonvested-rights claim

The King George County Board of Zoning and Appeals on Feb. 12, 2025, voted to deny appeal case Z2024-01963 from Amazon Data Services Inc., finding the zoning administrator's August 8, 2024 response was timely and sufficient and that the county zoning administrator does not have authority under the King George County ordinance to determine whether Amazon holds vested rights to the approved Birchwood data center approvals.

The matter concerned roughly 869 acres across nine parcels associated with the Birchwood data center project and Amazon's request that the zoning administrator determine whether prior approvals ' including a conditional rezoning, proffer amendment, special exception and comprehensive plan amendment ' had created vested rights that would prevent a pending county downzoning. Mary Stewart, counsel for the county, framed the issue: "The question before the BZA tonight is whether Mr. Smolnick as zoning administrator was correct in saying that he did not have to make a determination of vested rights or if he was incorrect and should have made a determination of vested rights."

The county argued the zoning administrator's letter was a permissible response under local ordinance and that, because the King George County ordinance does not specifically grant the zoning administrator authority to make conclusions of law without the county attorney's concurrence, the administrator was not required to issue a vested-rights determination. Richard Stewart, the county attorney, said the county did not concur with the administrator making that legal determination and warned of the proper judicial remedy, telling the board: "They've got to file a mandamus before the circuit court judge to order him to write a new response."

Amazon's counsel, Jamie Weisgarver, urged the board to find the August 8 letter both untimely and nonresponsive and argued Amazon had satisfied the legal elements for vested rights. Weisgarver said the company relied on the approvals, purchased the property for about $168million and spent roughly $6million on development work prior to the county's April 2024 downzoning action; she told the board the vendor and permitting activity in the record showed the company had acted in reliance on the approvals. During the hearing Weisgarver said the response "just wasn't responsive. It it didn't give an answer."

The parties disputed two narrow, statutory questions before the BZA: whether the zoning administrator's written response met the 90-day deadline in state code and whether the written response was sufficient under the statute. The board limited its review to those procedural issues rather than making a full judicial determination of vested rights. Board and counsel repeatedly identified the same limitation: the BZA's role on appeal is to judge whether the administrative officer's decision was correct, and not to supplant circuit court jurisdiction on mixed fact-and-law vested-rights determinations.

During the hearing Richard Stewart and county staff described a prior, informal "standstill" or tolling understanding that county counsel said he had accepted orally but not in writing; county counsel also asserted a statutory "30-5" continuance related to his legislative duties, which he said affected the timing for his concurrence. Amazon disputed that any valid standstill agreement tolled the 90-day statutory clock and pointed to a May 8, 2024 request for determination and an August 6, 2024 statutory deadline; the county's response was dated August 8, 2024. The BZA discussed that two-day gap and whether the circumstances justified the late response; board members described a factual dispute (oral standstill versus no written tolling agreement) and differing views on how statutory continuances apply.

After discussion, the board voted on a motion to deny Amazon's appeal, concluding the zoning administrator's response was timely given the circumstances and that the zoning administrator lacked authority under county ordinance to make a vested-rights legal determination. The board accepted the record and closed the item; Amazon has the option of pursuing judicial review in circuit court if it seeks a different remedy.

The board noted procedural limits during the hearing: board counsel advised the BZA against reaching a final vested-rights determination because that would require factfinding beyond the scope of the administrative appeal and better addressed by a court proceeding. The record on the BZA appeal consisted of the materials before the board at the time it made its determination.