Justia.com Opinion Summary: Albemarle County enacted a zoning ordinance governing construction on slopes within the county. Under the waiver provision of the county code, the planning commission was authorized to grant a waiver from the restrictions otherwise imposed by the ordinance. Kent Sinclair, who owned property in the county, filed a complaint seeking, inter alia, a declaratory judgment that the county exceeded the power delegated to it by the General Assembly in violation of the Dillon Rule because its procedure for considering waiver applications was not authorized by state law. The circuit court granted summary judgment against Sinclair. The Supreme Court reversed the circuit court's judgment that the decision to grant or deny waiver applications may be delegated to the planning commission, as the delegation was legislative in nature and not authorized by state law. Accordingly, in enacting the waiver provision, the county exceeded its authority from the General Assembly in violation of the Dillon Rule and the waiver provision was void. Remanded.
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PRESENT:
All the Justices
KENT SINCLAIR
v.
OPINION BY
JUSTICE WILLIAM C. MIMS
January 13, 2012
Record No. 101831
NEW CINGULAR WIRELESS PCS,
LLC, ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
H. Thomas Padrick, Jr., Judge Designate
In this appeal, we consider whether an Albemarle County zoning
ordinance governing construction on slopes within the county
conflicts with statutory law or exceeds the powers delegated to the
county by the General Assembly, in violation of the Dillon Rule.
I.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Kent Sinclair and Joan C. Elledge own adjacent residential
parcels in Albemarle County.
New Cingular Wireless PCS, LLC (“New
Cingular”) contracted with Elledge to install a 103-foot cellular
transmission tower on her parcel.
The steep topography of the
parcel brings it within the scope of Albemarle County Code § 18-4.2
(“the Ordinance”), which restricts construction on land with slopes
of 25 percent or more (“a Critical Slope”).
Under Albemarle County Code § 18-4.2.5(a) (“the Waiver
Provision”), the planning commission is authorized to grant a
waiver from the restrictions otherwise imposed by the Ordinance
after making certain findings or imposing conditions it deems
necessary to protect the public health, safety, or welfare and to
ensure compliance with the intent and purpose of the Ordinance. 1
An
appeal from the decision of the planning commission lies to the
board of supervisors only if the waiver is granted subject to
conditions objectionable to the applicant or is denied.
County Code § 18-4.2.5(a)(5).
Albemarle
The Ordinance makes no provision for
appeals by third parties, such as owners of adjoining parcels who
believe themselves to be aggrieved by a decision of the planning
commission to grant a waiver.
Elledge and New Cingular filed an application for a waiver as
provided by the Waiver Provision.
Sinclair opposed the application
throughout the administrative staff review process and two public
hearings.
Nevertheless, the planning commission approved the
application in February 2010.
Sinclair then filed a complaint in the circuit court seeking a
declaratory judgment that (1) the Waiver Provision is invalid
because it conflicts with the statutory scheme governing planning
and zoning set forth in Title 15.2 of the Code of Virginia and (2)
the county exceeded the power delegated to it by the General
Assembly in violation of the Dillon Rule because its procedure for
1
The Albemarle County Code § 18-4.2.5 also provides for an
“administrative waiver” when the Critical Slope triggering
application of the Ordinance was created during development of the
property in accordance with a site plan approved by the county or
to replace an existing structure located on a Critical Slope when
the footprint of the new structure does not exceed the footprint of
the structure it replaces. Albemarle County Code § 18-4.2.5(b).
The “administrative waiver” provision is not relevant in this case
and is not before us in this appeal.
considering waiver applications is not authorized by state law. 2
In
particular, he asserted that the only departures from a zoning
ordinance permitted by state law are variances, defined by Code
§ 15.2-2201, and zoning modifications, provided for in Code § 15.22286(A)(4).
Under Code § 15.2-2312, a variance may only be
approved by the board of zoning appeals and only upon a finding
that criteria set forth in Code § 15.2-2309(2) have been met. 3
Under Code § 15.2-2286(A)(4), zoning modifications may only be
granted by the zoning administrator and only upon a finding that
identical criteria have been met.
Thus, whether the waiver is a
variance or a zoning modification, the Waiver Provision
irreconcilably conflicts with state law because it permits waivers
to be granted by the planning commission, rather than the board of
zoning appeals or zoning administrator, and without a finding that
the criteria in Code § 15.2-2309(2) have been met.
Sinclair also asserted that the Waiver Provision unlawfully
circumvented his right to judicial review.
2
Under Code § 15.2-
The Complaint named as defendants Elledge and New Cingular,
Albemarle County and its board of supervisors and planning
commission, and the director of the Albemarle County Department of
Community Development in his official capacity. We refer to these
parties collectively as “the Defendants.”
3
Code § 15.2-2309(2) permits a board of zoning appeals to
grant a variance only if it finds that “the strict application of
the ordinance would produce undue hardship relating to the
property,” “the hardship is not shared generally by other
properties in the same zoning district and the same vicinity,” and
“the authorization of the variance will not be of substantial
detriment to adjacent property and that the character of the
district will not be changed by the granting of the variance.”
2311(A), any person aggrieved by an adverse decision of the zoning
administrator concerning the grant or denial of a zoning
modification may appeal to the board of zoning appeals.
Under Code
§ 15.2-2314, any person aggrieved by the decision of the board of
zoning appeals, whether on an appeal from a decision of the zoning
administrator concerning a zoning modification or from the board’s
grant or denial of a variance, may petition the circuit court for a
writ of certiorari to review the board’s decision.
Because the
Waiver Provision provided no right of appeal to aggrieved parties
and particularly no judicial review in the circuit court, it again
conflicted with state law. 4
Sinclair and the Defendants filed competing motions for
summary judgment.
After a hearing, the circuit court determined
that the waivers allowed by the Waiver Provision are not variances
within the meaning of Code § 15.2-2201.
Therefore, Code § 15.2-
2312 did not reserve consideration of waiver applications to the
board of zoning appeals and the criteria to be considered in
granting or denying variances imposed by Code § 15.2-2309(2) did
not apply.
The court also ruled that the Ordinance’s delegation to
the planning commission of the decision to grant or deny waiver
4
Sinclair also claimed that the planning commission erred in
applying the Waiver Provision to Elledge and New Cingular’s
application because it provides for waivers only upon application
by a “subdivider” or “developer,” and neither Elledge nor New
Cingular fell within the Ordinance’s definition of either term.
This claim was nonsuited and is not before us on appeal.
applications was within the broad grant of powers delegated to the
county under Code §§ 15.2-2280 and 15.2-2286.
Accordingly, it held
the Waiver Provision did not conflict with state law and the county
acted pursuant to power delegated to it by the General Assembly.
The court therefore granted the Defendants’ motion for summary
judgment.
We awarded Sinclair this appeal.
II. ANALYSIS
The circuit court’s interpretation of the Ordinance and state
law presents a legal question, which we review de novo.
Jones v.
Williams, 280 Va. 635, 638, 701 S.E.2d 405, 406 (2010).
Localities
have “no element of sovereignty” and are agencies created by the
Commonwealth.
Marble Techs., Inc. v. City of Hampton, 279 Va. 409,
417, 690 S.E.2d 84, 88 (2010) (quoting Whiting v. Town of West
Point, 88 Va. 905, 906, 14 S.E. 698, 699 (1892)) (internal
quotation marks omitted).
Accordingly, when a statute enacted by
the General Assembly conflicts with an ordinance enacted by a local
governing body, the statute must prevail.
Covel v. Town of Vienna,
280 Va. 151, 162, 694 S.E.2d 609, 616 (2010).
Moreover, local governing bodies “have only those powers that
are expressly granted, those necessarily or fairly implied from
expressly granted powers, and those that are essential and
indispensable.”
Marble Techs., Inc., 279 Va. at 417, 690 S.E.2d at
88 (quoting Board of Zoning Appeals v. Board of Supervisors, 276
Va. 550, 553-54, 666 S.E.2d 315, 317 (2008) (internal quotation
marks omitted)).
This principle, known as the Dillon Rule, is a
rule of strict construction:
“[i]f there is a reasonable doubt
whether legislative power exists, the doubt must be resolved
against the local governing body.”
Board of Supervisors v. Reed's
Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995).
There
is no presumption that an ordinance is valid; if no delegation from
the legislature can be found to authorize the enactment of an
ordinance, it is void.
S.E.2d at 88.
Marble Techs., Inc., 279 Va. at 416-17, 690
Only where a delegation is found and “the question
is whether [the delegated power] has been exercised properly, [may]
the ‘reasonable selection of method’ rule . . . be applicable,
[whereupon] the inquiry is directed to whether there may be implied
the authority to execute the power in the particular manner
chosen.”
Id. at 417 n.10, 690 S.E.2d at 88 n.10 (internal
alterations omitted).
Sinclair first asserts that the Waiver Provision is void
because the Ordinance prohibits construction on Critical Slopes.
Because a landowner may not lawfully erect a structure on a parcel
with a Critical Slope without obtaining a waiver, he argues, a
waiver is in reality a variance or zoning modification and the
criteria set forth in Code §§ 15.2-2309(2) and 15.2-2286(A)(4) must
be met.
We disagree.
A variance “allows a property owner to do what is otherwise
not allowed under the ordinance.”
Bell v. City Council, 224 Va.
490, 496, 297 S.E.2d 810, 813-14 (1982).
But where “the property
may be developed in a way consistent with the ordinance, but only
with approval of the [locality] after specified conditions are
met,” a variance is not necessary.
Id. at 496, 297 S.E.2d at 814.
Here, the Ordinance allows construction, provided that the
landowner applies for the county’s prior approval.
The application
process allows the county to review the proposed construction to
ensure it will not precipitate the adverse effects it enacted the
Ordinance to avoid, or to impose any conditions it determines to be
necessary to ameliorate such adverse effects. 5
If the proposed
construction does not precipitate such effects or if conditions may
be imposed to ameliorate them, the construction will be allowed.
In Bell, we determined that when proposed construction is
permitted by ordinance, subject to prior application to and
approval by the local government, the approval was not a variance
but a special exception.
224 Va. at 496, 297 S.E.2d at 814.
The
General Assembly has delegated to localities the authority to
provide for “the granting of special exceptions under suitable
regulations and safeguards” in a zoning ordinance.
5
Code § 15.2-
The Ordinance identifies such adverse effects to include
“rapid and/or large-scale movement of soil and rock; excessive
stormwater run-off; siltation of natural and man-made bodies of
water; loss of aesthetic resource; and . . . greater travel
distance of septic effluent, all of which constitute potential
dangers to the public health, safety and/or welfare.” Albemarle
County Code § 18-4.2.
2286(A)(3).
Moreover, Code § 15.2-2288.1 expressly permits the use
of the special exception procedure for steep slope development.
Unlike variances, special exceptions are not required to be
reviewed for compliance with the criteria set forth in Code
§§ 15.2-2309(2) and 15.2-2286(A)(4).
Accordingly, we reject
Sinclair’s argument that the Waiver Provision conflicts with state
law because it does not require consideration of those criteria
before a waiver application is approved. 6
Sinclair next asserts that the procedure for reviewing waiver
applications created by the Waiver Provision is not authorized by
state law and therefore conflicts with the Dillon Rule.
We agree.
As previously noted, the Waiver Provision purports to confer
upon the planning commission the authority to grant or deny a
waiver application.
Albemarle County Code § 18-4.2.5(a).
However,
delegation of such authority to the planning commission is
6
Our holding on this issue is limited to addressing Sinclair’s
argument that a waiver granted under the Waiver Provision may only
be either a variance or a zoning modification and that the
mandatory criteria set forth by the General Assembly in Code
§§ 15.2-2309(2) and 15.2-2286(A)(4) therefore must be considered
before such a waiver is granted. We hold today that such a waiver
need not be either a variance or a zoning modification and that the
Code §§ 15.2-2309(2) and 15.2-2286(A)(4) criteria therefore need
not be included in the consideration of such a waiver. We do not
decide today that such a waiver is not a departure from the zoning
ordinance because variances and zoning modifications are not the
only form of departures. See, e.g., Code § 15.2-2201 (providing
for special exceptions). However, that does not end our inquiry
because Sinclair further argues that the planning commission lacks
the authority to grant such a waiver. It is to that question that
we now turn.
inconsistent with the general role of planning commissions, as
reflected by their enabling statutes. Also, the General Assembly
has specifically empowered only zoning administrators and boards of
zoning appeals to authorize departures from zoning ordinances.
The
General Assembly was fully capable of empowering planning
commissions in this regard and elected not to do so.
The General Assembly requires every locality to “create a
local planning commission in order to promote the orderly
development of the locality and its environs.”
Code § 15.2-2210.
While the General Assembly describes planning commissions as
“primarily” advisory bodies, id., it has declined to grant them
executive, legislative, or judicial powers. 7
For example, planning commissions are charged with preparing
comprehensive plans to recommend to the local governing body.
§ 15.2-2223.
Code
To accomplish this task, they are authorized to
survey and study development and growth trends, id.; to request
reasonable information from any state entity responsible for any
public facility within the locality, Code § 15.2-2202(B); to
request reasonable information from any electrical utility
7
Even their necessary incidental powers are specifically set
forth in statute. See, e.g., Code § 15.2-2214 (power to fix the
time for regular meetings); Code § 15.2-2214 (power to call special
meetings); Code § 15.2-2217 (power to elect a chairman and vicechairman, and appoint any other officers, employees, or staff
authorized by the local governing body); Code § 15.2-2222 (power to
spend funds allocated by the local governing body); Code § 15.22211 (power to adopt rules and appoint committees).
responsible for transmission lines of 150 kilovolts or more, Code
§ 15.2-2202(E); to meet with the Department of Transportation about
any state highway affected by the plan, Code § 15.2-2222.1; to
study public facilities necessary to implement the plan, and any
associated costs or revenues, Code § 15.2-2230.1; to post the
proposed plan on a website and hold public hearings, Code § 15.22225; and to review the plan every five years to determine whether
it should be amended by the local governing body, Code § 15.2-2230.
Similarly, planning commissions may also prepare an official
map and make any surveys necessary for such purpose, Code § 15.22233, and recommend the ensuing map for approval by the local
governing body, Code § 15.2-2234.
Planning commissions may consult with the local governing body
about the creation of an agricultural and forestal district, Code
§ 15.2-4305; recommend termination, modification, or continuation
of an existing district, Code § 15.2-4311; make recommendations
about proposals to build on or acquire land within a district, Code
§ 15.2-4313, or to withdraw land from an agricultural and forestal
district, Code § 15.2-4314.
Planning commissions may prepare and recommend a subdivision
ordinance for approval by the local governing body, Code § 15.22251, and recommend amendments to the subdivision ordinance, Code
§ 15.2-2253.
They also may prepare and recommend a zoning
ordinance for adoption by the local governing body, Code § 15.2-
2285, or recommend that the local governing body amend the zoning
ordinance, Code § 15.2-2286(7).
But after reviewing the seventy sections in which the term
“planning commission” appears in Title 15.2 of the Code, we have
not identified a single provision of state law authorizing planning
commissions to consider and rule upon departures from a zoning
ordinance.
The Defendants nevertheless argue that Code §§ 15.2-
2280 and 15.2-2286 provide broad authority to localities for the
administration and enforcement of zoning ordinances.
The county’s
delegation to the planning commission is consistent with this broad
authority, the Defendants continue, particularly when the power
delegated is not legislative but ministerial or administrative in
nature, as is the power to grant waiver applications.
We disagree.
When the General Assembly has allowed local governing bodies
to delegate additional powers to planning commissions, it has done
so in express terms.
For example, it has permitted local governing
bodies to authorize them to receive funds or approve bonds or
letters of credit relative to the dedication of public rights of
way, Code § 15.2-2241(A); to assess whether a transfer of
development rights complies with the locality’s transfer of
development rights ordinance, Code §15.2-2316.2; and to serve as a
road impact fee advisory committee, Code § 15.2-2319.
Likewise, it
has permitted local governing bodies to delegate to planning
commissions the enforcement and administration of subdivision
regulations, Code § 15.2-2255, and to consider subdivision plats
and preliminary subdivision plats submitted for approval, Code
§§ 15.2-2259 and 15.2-2260.
It has not, however, authorized local
governing bodies to delegate to planning commissions approval of
departures from zoning ordinances or any other powers to administer
or enforce an existing zoning ordinance. 8
Compare Code § 15.2-2255
(empowering local governing bodies to administer and enforce
subdivision ordinances and expressly including planning
commissions) with Code § 15.2-2286(A)(4) (empowering local
governing bodies to administer and enforce zoning ordinances with
no mention of planning commissions at all).
To the contrary, those to whom local governing bodies are
authorized to delegate approval of departures from zoning
ordinances are clearly set out in state law.
Local governing
bodies are expressly authorized to delegate approval of zoning
modifications to a zoning administrator.
Code § 15.2-2286(A)(4)
(“Where provided by ordinance, the zoning administrator may be
authorized to grant a modification from any provision contained in
the zoning ordinance . . . .”).
Likewise, they are expressly
authorized to delegate approval of special exceptions to the board
8
“The public policy of the Commonwealth is determined by the
General Assembly.” Uniwest Constr., Inc. v. Amtech Elevator
Servs., 280 Va. 428, 440, 699 S.E.2d 223, 229 (2010). In Virginia,
the General Assembly has decided that unless it provides otherwise
by statute, planning commissions are advisory, not decision-making,
bodies.
of zoning appeals.
Compare Code § 15.2-2310 (applications for
special exceptions “shall be transmitted promptly to the secretary
of the board who shall place the matter on the docket to be acted
upon by the board”) with Code § 15.2-2286(A)(3) (“the governing
body of any locality may reserve unto itself the right to issue
such special exceptions”).
board of zoning appeals.
Variances are to be considered by the
Code §§ 15.2-2309(2) and 15.2-2310.
While we have held that local governing bodies may delegate
administrative or ministerial acts without statutory authorization,
see Ours Props., Inc. v. Ley, 198 Va. 848, 850-52, 96 S.E.2d 754,
756-58 (1957), the power the planning commission purports to
exercise in granting a waiver application is not administrative or
ministerial in nature.
Zoning is a legislative power, Andrews v.
Board of Supervisors, 200 Va. 637, 639, 107 S.E.2d 445, 447 (1959),
and approval of departures from zoning ordinances is a legislative
act.
Cochran v. Fairfax County Board of Zoning Appeals, 267 Va.
756, 765, 594 S.E.2d 571, 576 (2004); National Mem. Park, Inc. v.
Board of Zoning Appeals, 232 Va. 89, 92, 348 S.E.2d 248, 249
(1986); Board of Supervisors v. Southland Corp., 224 Va. 514, 522,
297 S.E.2d 718, 721 (1982); see also Helmick v. Town of Warrenton,
254 Va. 225, 229, 492 S.E.2d 113, 114 (1997) (A decision “that
regulates or restricts conduct with respect to property is purely
legislative.” (internal quotation marks and alterations omitted)).
“If allowed by statute, local governing bodies may delegate the
exercise of these legislative functions to subordinate bodies,
officers, or employees . . . .”
Helmick, 254 Va. at 229, 492
S.E.2d at 115 (emphasis added).
Here, as discussed above, the
delegation authorized by statute is limited to the zoning
administrator (for zoning modifications) or the board of zoning
appeals (for variances and special exceptions). 9
We therefore hold that the Waiver Provision’s delegation of
power to grant waiver applications to the planning commission is
legislative in nature and is not authorized by state law.
Accordingly, in enacting the Waiver Provision, the county exceeded
its authority from the General Assembly in violation of the Dillon
Rule and the Waiver Provision is void.
III.
CONCLUSION
For the foregoing reasons, we will affirm the circuit court’s
judgment that waivers are not variances within the meaning of Code
§ 15.2-2201, reverse its judgment that the decision to grant or
9
Decisions to grant or deny a departure from a zoning
ordinance necessarily implicate important property rights, not
solely for the landowner applying for such a departure but also for
other parties who may be adversely affected by a ruling.
Accordingly, the decision of the zoning administrator to grant or
deny a zoning modification may be appealed to the board of zoning
appeals by any aggrieved party. Code § 15.2-2311(A). Similarly,
the decision of the board of zoning appeals – whether a decision to
grant or deny a variance or special exception or an appeal from a
zoning administrator’s decision to grant or deny a zoning
modification – may be appealed to the circuit court by any
aggrieved party. Code § 15.2-2314. The Waiver Provision affords
no right of appeal to an aggrieved party, other than a landowner
whose application is approved with objectionable conditions or
denied outright.
deny waiver applications may be delegated to the planning
commission, and remand for further proceedings consistent with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE McCLANAHAN, with whom JUSTICE POWELL joins, concurring in
part and dissenting in part.
I would affirm the circuit court’s judgment in its entirety.
In count I of his complaint, Sinclair asserted the Waiver
Provision was void because it is in direct conflict with the Code
provisions governing zoning variances and modifications. As the
majority concludes, however, the Waiver Provision is not a mechanism
for a zoning variance as defined by Code § 15.2-2201 1 nor a zoning
modification as provided for in Code § 15.2-2286(A)(4) 2 since the
1
Variance “in the application of a zoning ordinance” is
defined as
a reasonable deviation from those provisions
regulating the size or area of a lot or parcel of
land, or the size, area, bulk or location of a
building or structure when the strict application of
the ordinance would result in unnecessary or
unreasonable hardship to the property owner, and such
need for a variance would not be shared generally by
other properties, and provided such variance is not
contrary to the intended spirit and purpose of the
ordinance, and would result in substantial justice
being done.
Code § 15.2-2201.
2
Like a variance, a modification may be granted by zoning
administrators upon satisfaction of certain criteria when “strict
Albemarle County Code zoning ordinance expressly allows disturbance
of critical slopes upon compliance with the conditions promulgated
by the board of supervisors.
Therefore, I agree the circuit court
did not err in granting the defendants’ motions for summary judgment
as to count I of Sinclair’s complaint.
In count II of his complaint, Sinclair asserted that under
Virginia law only a board of zoning appeals and a zoning
administrator are given the power to authorize a “deviation” from a
zoning ordinance, whether denominated as a zoning “variance” or
“modification.”
Therefore, according to Sinclair, since the Waiver
Provision grants to the planning commission the power to approve a
zoning variance or modification, the Waiver Provision is void as
being in violation of the Dillon Rule.
As the majority concludes,
though, the Waiver Provision is not a mechanism for a zoning
variance or modification.
Therefore, count II, being premised on
Sinclair’s assertion that the Waiver Provision is a zoning variance
or modification, must necessarily fail. 3
My analysis would thus end
here.
application of the ordinance would produce undue hardship.” Code
§ 15.2-2286(A)(4).
3
I find it difficult to reconcile the majority’s holding as to
count II with its holding as to count I. Although the majority
concludes the Waiver Provision is not a zoning variance mechanism
since it does not allow a “deviation” from the zoning ordinance, it
nevertheless concludes the Waiver Provision is void because it
grants to the planning commission the power to allow a “departure”
from the zoning ordinance. I see no meaningful distinction between
the term “deviation,” which is used by Sinclair, and the term
However, notwithstanding its conclusion that the Waiver
Provision is not a mechanism for deviating from the zoning
ordinance, the majority nevertheless holds the Waiver Provision is
not authorized by state law because it grants legislative power to
the planning commission. 4
I disagree.
In considering challenges to zoning ordinances, we have
“repeatedly” held that “an administrative officer or bureau may be
invested with the power to ascertain and determine whether the
qualifications, facts or conditions comprehended in and required by
the general terms of a law, exist in the performance of their
“departure,” which is used by the majority. Webster’s Dictionary
denotes no distinction either. It defines “departure” as “a
deviation or divergence esp. from a rule, course of action, plan, or
purpose.” Webster’s Third New International Dictionary 604 (3d ed.
1993).
Counts I and II of Sinclair’s complaint are both premised on
his position that the Waiver Provision is void because it is a
mechanism allowing the County to avoid the application of the Code
provisions governing zoning variances and modifications, which
involve the power to permit a landowner to do something that is
prohibited under legislatively enacted zoning provisions. As the
majority concludes, the Waiver Provision does not grant power to the
planning commission to permit a landowner to do what is not allowed
under legislatively enacted zoning ordinance. Instead, the Waiver
Provision is an integrated part of the legislatively enacted zoning
ordinance and expressly allows the disturbance of critical slopes
upon compliance with conditions set forth therein. As such, it does
not grant the planning commission the power to “deviate” or “depart”
from the zoning ordinance.
4
It cannot be disputed that the board of supervisors had the
authority to enact a zoning ordinance. Ours Props., Inc. v. Ley,
198 Va. 848, 850, 96 S.E.2d 754, 756 (1957). Thus, the issue raised
by the majority’s analysis and holding becomes whether the board of
supervisors unlawfully delegated legislative authority to the
planning commission. See Logan v. City Council of the City of
Roanoke, 275 Va. 483, 659 S.E.2d 296 (2008); County of Fairfax v.
Southern Iron Works, Inc., 242 Va. 435, 410 S.E.2d 674 (1991).
duties, and especially when the performance of their duties is
necessary for the safety and welfare of the public.”
Ours Props.,
Inc., 198 Va. at 851, 96 S.E.2d at 757 (citations omitted) (zoning
ordinance not an unlawful delegation of legislative power to
building inspector given discretion to grant or deny permits).
A legislative body, such as a city council, must work
through some instrumentality or agency to perform its
duties, since it does not sit continuously. Under
the changing circumstances and conditions of life, it
is frequently necessary that power be delegated to an
agent to determine some fact or state of things upon
which the legislative body may make laws operative.
Otherwise, the wheels of government would cease to
operate. Of course, the discretion and standards
prescribed for guidance must be as reasonably precise
as the subject matter requires or permits.
Id.
Thus, “[c]onsiderable freedom to exercise discretion and
judgment must, of necessity, be accorded to officials in charge of
administering such ordinances.”
Id. at 851, 96 S.E.2d at 756-57.
The Albemarle County Code directs the planning commission to
“[a]dminister the . . . zoning ordinance as set forth in such.”
Albemarle County Code § 2-406(G).
This role is certainly consistent
with the duty of planning commissions in Virginia to prepare the
zoning ordinances for their respective localities.
2285(A).
See Code § 15.2-
In fact, we have stated that “[t]he role of a planning
commission is critical in the zoning process.”
City Council of the
City of Alexandria v. Potomac Greens Assocs. P'ship, 245 Va. 371,
376, 429 S.E.2d 225, 227 (1993).
The Waiver Provision allows the disturbance of critical slopes
upon a finding by the commission, in consultation with the county
engineer, that the conditions promulgated by the board of
supervisors and set forth in the provision have been satisfied. 5
Thus, in the scope of its duty to “administer” the zoning ordinance,
the commission is given the power to determine the facts and whether
those facts comply with the law and policy set forth by the board of
supervisors. It is not, however, given the power to deviate or
depart from the conditions set forth therein.
Nor is it given the
power to change the law or policy as set forth in the zoning
ordinance.
In the instant case, the ordinance merely conferred
administrative functions upon the [commission]
charged with the duty of carrying out the will and
direction of the [board of supervisors]; the
legislative purpose was disclosed by the enactment of
the ordinance; and, as far as was reasonably
5
In particular, “the commission shall consider the
determination by the county engineer” as to whether the developer
will address “the rapid and/or large-scale movement of soil and
rock, excessive stormwater run-off, siltation of natural and manmade bodies of water, loss of aesthetic resources, and, in the event
of septic system failure, a greater travel distance of septic
effluent that might otherwise result from the disturbance of
critical slopes” to ensure that the disturbance “will not pose a
threat to the public drinking water supplies and flood plain areas,
and that soil erosion, sedimentation, water pollution and septic
disposal issues will be mitigated to the satisfaction of the county
engineer.” Albemarle County Code § 18-4.2.5(a)(1)-(2)(emphasis
added). Based on the determination of the county engineer, the
commission must find, among other things, that the disturbance
“would not be detrimental to the public health, safety or welfare,
to the orderly development of the area, or to adjacent properties;
[and] would not be contrary to sound engineering practices.”
Albemarle County Code § 18-4.2.5(a)(2)-(3).
practical, the ordinance left to the [commission]
charged to act under it merely the discretion of
determining whether a given status came within the
provisions thereof.
Ours Props., Inc., 198 Va. at 853, 96 S.E.2d at 758. Cf. Laird v.
City of Danville, 225 Va. 256, 262, 302 S.E.2d 21, 25 (1983)
(authorizing planning commission to rezone property is unlawful
delegation of legislative power). 6
For these reasons, I would hold the circuit court also did not
err in granting defendants’ motions for summary judgment as to count
II of Sinclair’s complaint.
6
Delegation to planning commissions of the duty to administer
zoning ordinances has been upheld by other states as well. See
e.g., Wesley Inv. Co. v. County of Alameda, 151 Cal. App.3d 672, 679
(Cal. Ct. App. 1st Dist. 1984) (rejecting claim that county
improperly delegated legislative power to planning commission and
holding commission could properly administer existing policy set
forth in zoning ordinance in denying site review applications);
Bellemeade Co. v. Priddle, 503 S.W.2d 734, 739-40 (Ky. Ct. App.
1973) (city may delegate to planning commission authority to locate
a “floating zone” since it is not a prohibited use nor is it
authorizing the granting of a variance and ordinance contains
standards for administration); Southland Corp. 7-Eleven Stores v.
Mayor & City Council of Laurel, 541 A.2d 653, 656 (Md. Ct. App.
1988) (city may delegate to planning commission authority to
determine under zoning ordinance when a proposed building would
create a public hazard and reject site plan); Florka v. City of
Detroit, 120 N.W.2d 797, 803 (Mich. 1963) (zoning ordinance lawfully
conferred power upon planning commission to act on applications for
business permits and, in doing so, determine whether business
injurious to surrounding neighborhood and not contrary to spirit and
purpose of ordinance).
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