Sinclair v. NEW CINGULAR WIRELESS PCS, LLC

PRESENT: All the Justices

KENT SINCLAIR
OPINION BY
v. Record No. 101831 JUSTICE WILLIAM C. MIMS
January 13, 2012 *
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”). The

Ordinance includes subsection § 18-4.2.5(a) (“the Waiver

Provision”), which sets forth the following detailed procedure

for modifying or waiving the requirements of the Ordinance by an

application to the planning commission:

*
As amended by order of the Court dated March 30, 2012.
1
1. Request. A developer or subdivider
requesting a modification or waiver shall file a
written request in accordance with section
32.3.10(d) of this chapter and identify and state
how the request would satisfy one or more of the
findings set forth in subsection 4.2.5(a)(3). If
the request pertains to a modification or waiver
of the prohibition of disturbing slopes of
twenty-five (25) percent or greater (hereinafter,
“critical slopes”), the request also shall state
the reason for the modification or waiver,
explaining how the modification or waiver, if
granted, would address the 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
resources, and, in the event of septic system
failure, a greater travel distance of septic
effluent (collectively referred to as the “public
health, safety, and welfare factors”) that might
otherwise result from the disturbance of critical
slopes.
2. Consideration of recommendation;
determination by county engineer. In reviewing a
request for a modification or waiver, the
commission shall consider the recommendation of
the agent as to whether any of the findings set
forth in subsection 4.2.5(a)(3) can be made by
the commission. If the request pertains to a
modification or waiver of the prohibition of
disturbing critical slopes, the commission shall
consider the determination by the county engineer
as to whether the developer or subdivider will
address each of the public health, safety and
welfare factors so that the disturbance of
critical slopes 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. The county engineer shall evaluate the
potential for soil erosion, sedimentation and
water pollution that might result from the
disturbance of slopes of twenty-five (25) percent
or greater in accordance with the current
provisions of the Virginia Department of
Transportation Drainage Manual, the Commonwealth

2
of Virginia Erosion and Sediment Control Handbook
and Virginia State Water Control Board best
management practices, and where applicable,
Chapter 17, Water Protection, of the Code.
3. Findings. The commission may grant a
modification or waiver if it finds that the
modification or waiver would not be detrimental
to the public health, safety or welfare, to the
orderly development of the area, or to adjacent
properties; would not be contrary to sound
engineering practices; and at least one of the
following:
a. Strict application of the requirements
of section 4.2 would not forward the
purposes of this chapter or otherwise serve
the public health, safety or welfare;
b. Alternatives proposed by the developer
or subdivider would satisfy the intent and
purposes of section 4.2 to at least an
equivalent degree;
c. Due to the property’s unusual size,
topography, shape, location or other unusual
conditions, excluding the proprietary
interest of the developer or subdivider,
prohibiting the disturbance of critical
slopes would effectively prohibit or
unreasonably restrict the use of the
property or would result in significant
degradation of the property or adjacent
properties; or
d. Granting the modification or waiver
would serve a public purpose of greater
import than would be served by strict
application of the regulations sought to be
modified or waived.
4. Conditions. In granting a modification or
waiver, the commission may impose conditions
deemed necessary to protect the public health,
safety or welfare and to insure that the
development will be consistent with the intent
and purposes of section 4.2.
5. Appeal. The board of supervisors shall
consider a modification or waiver as follows:
a. The denial by the commission of a
modification or waiver, or the approval of a
modification or waiver by the commission
with conditions objectionable to the

3
 developer or subdivider, may be appealed to
the board of supervisors as an appeal of a
denial of the plat, as provided in section
14-226 of the Code, or the site plan, as
provided in section 32.4.2.7 or 32.4.3.9, to
which the modification or waiver pertains.
A modification or waiver considered by the
commission in conjunction with an
application for a special use permit shall
be subject to review by the board of
supervisors.
b. In considering a modification or waiver,
the board may grant or deny the modification
or waiver based upon the findings set forth
in subsection 4.2.5(a)(3), amend any
condition imposed by the commission, and
impose any conditions it deems necessary for
the reasons set forth in subsection
4.2.5(a)(4).

Albemarle County Code § 18-4.2.5(a). 1

Thus, under 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. 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

1
Albemarle County Code § 18-4.2.5(b) 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. The “administrative
4
the applicant or is denied. 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 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

§ 15.2-2286(A)(4). Under Code § 15.2-2312, a variance may only

waiver” provision is not relevant in this case and is not before
us in this appeal.
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
5
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. Under Code § 15.2-

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

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.”
6
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 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

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.
7
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).

A. THE DILLON RULE

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

8
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). In considering whether a local governing body

had authority to enact an ordinance, there is no presumption that

it is valid; if no delegation from the legislature can be found

to authorize its enactment, it is void. Marble Techs., Inc., 279

Va. at 416-17, 690 S.E.2d at 88. While the “reasonable selection

of method” rule may apply to determine whether a local governing

body has employed a proper method for exercising a power

delegated to it, the rule is irrelevant when considering whether

the General Assembly has delegated local governing bodies a power

to exercise at all. Id. at 417 n.10, 690 S.E.2d at 88 n.10.

B. CRITICAL SLOPE WAIVERS ARE NEITHER
VARIANCES NOR ZONING MODIFICATIONS

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.

9
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. Code § 15.2-

5
Such adverse effects, referred to in the Waiver Provision
as “the “public health, safety, and welfare factors,” include
“the 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 resources, and, in the event
10
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

C. CONSIDERATION OF CRITICAL SLOPE WAIVERS IS
LEGISLATIVE, NOT MINISTERIAL OR ADMINISTRATIVE

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.

of septic system failure, a greater travel distance of septic
effluent.” Albemarle County Code § 18-4.2.5(a)(1).
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
11
 As previously noted, the Waiver Provision purports to confer

upon the planning commission the authority to grant or deny a

waiver application or impose conditions in its sole discretion

and with no right of appeal or judicial review for aggrieved

third parties. The Defendants argue that such power is only

ministerial or administrative and that local governing bodies may

delegate its exercise to planning commissions under the general

authority conferred by Code §§ 15.2-2280, 15.2-2284, and 15.2-

2286(a)(4). We disagree.

We have held that local governing bodies may delegate

administrative or ministerial acts without statutory

authorization. Ours Props., Inc. v. Ley, 198 Va. 848, 850-52, 96

S.E.2d 754, 756-58 (1957). In Ours Properties, the issue was

whether a building inspector had the authority to grant or refuse

an application for a permit to build an asphalt plant in an area

zoned for light industrial uses. The underlying ordinance of the

City of Falls Church allowed permits to be granted only when,

among other things, “satisfactory evidence is presented that such

establishment will not adversely affect any contiguous district

through the dissemination of smoke, fumes, dust, odor, or noise

or by reason of vibration and that such establishment will not

Sinclair further argues that the planning commission lacks the
authority to grant such a waiver.
12
result in any unusual danger of fire or explosion.” Id. at 849,

96 S.E.2d at 755 (emphasis omitted).

In upholding the city council’s delegation to the building

inspector to determine whether an applicant for a building permit

had met his burden under the ordinance, we noted that a local

governing body

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.
[I]t is necessary that the determination of
such facts must be left to the honest judgment of
some designated official or board. In Virginia,
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 duties, and
especially when the performance of their duties
is necessary for the safety and welfare of the
public.

Id. at 851, 96 S.E.2d at 757.

However, Ours Properties is distinguishable from this case

on three grounds. First, in that case, the building permit

ordinance restricted the building inspector to considering

factors that we determined “have a well understood meaning, and

13
are intended to protect the public welfare, and to furnish a

pattern of conduct to guide a conscientious official in the

performance of his duties under the ordinance.” Id. at 853, 96

S.E.2d at 758. In this case, we are unable to determine that the

so-called “public health, safety and welfare factors,” which

include “loss of aesthetic resources,” Albemarle County Code

§ 18-4.2.5(a)(1), either “have a well understood meaning,” “are

intended to protect the public welfare,” or “furnish a pattern of

conduct to guide a conscientious official in the performance of

his duties under the ordinance.”

Second, in Ours Properties, we observed that the building

permit ordinance satisfied the requirements of due process

because “review in the courts[] is accorded any aggrieved party.”

198 Va. at 853, 96 S.E.2d at 758 (emphasis added). 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 –

14
may be appealed to the circuit court by any aggrieved party.

Code § 15.2-2314. Yet in this case, aggrieved third parties have

no right of appeal under the Waiver Provision at all.

Finally, in Ours Properties, we observed that “[t]he

provisions of the ordinance here in question merely delegate

power authorizing the building inspector to ascertain facts to

which the legislation is directed, and to put into effect the

features controlled by the ascertained facts.” 198 Va. at 852,

96 S.E.2d at 757-58. Unlike the ordinance for the issuance of

building permits in Ours Properties, the Waiver Provision does

not empower the planning commission merely to evaluate whether

proposed construction on a Critical Slope would precipitate one

or more of the adverse effects identified as the so-called

“public health, safety, and welfare factors” in Albemarle County

Code § 18-4.2.5(a)(1) and grant or reject a waiver application

based on that factual determination. Rather, the Waiver

Provision purports to allow the planning commission to impose

conditions to ameliorate such effects. Albemarle County Code

§ 18-4.2.5(a)(4).

We considered a similar procedural structure in Fairfax

County Board of Supervisors v. Southland Corp., 224 Va. 514, 297

S.E.2d 718 (1982), with respect to special exceptions. We noted

that a key difference between a variance and a special exception

is that a variance authorizes a use otherwise prohibited by the

15
ordinance while the use permitted by a special exception is

permitted under the ordinance, subject to prior application to

and approval by the local government. Id. at 522 & n.2, 297

S.E.2d at 722 & n.2 (citing Bell, 224 Va. at 496, 297 S.E.2d at

813-14). 7 However, we also observed that such approval “is to be

granted subject to such limitations and conditions as public

officials may impose in order to reduce the impact of the use

upon neighboring properties and the public to the level which

would be caused by those uses permitted as a matter of right.”

Id. at 522, 297 S.E.2d at 722.

While we do not decide today that a waiver under the Waiver

Provision is a special exception, the approval mechanisms are

functionally analogous. Like the special exception process we

considered in Southland Corp., the Waiver Provision permits

construction on Critical Slopes but requires prior application

and approval, which may be contingent upon limitations and

conditions imposed by the approving authority. The determination

that conditions are necessary to mitigate or avoid the adverse

effects identified in the Waiver Provision necessarily includes a

determination of which conditions will effectively avoid or

mitigate those effects. The latter determination is not merely

7
And as discussed above, this difference is critical to our
determination that the factors required by Code § 15.2-2309(2)
need not be considered in evaluating a critical slope waiver
application.
16
administrative or ministerial: it is legislative. See id. at

522, 297 S.E.2d at 722 (“Whether a legislative body has reserved

unto itself the power to grant or deny special exceptions or use

permits . . . we have consistently held the exercise of that

power to be a legislative, rather than an administrative act.”)

D. CONSIDERATION OF CRITICAL SLOPE WAIVERS MAY
NOT BE DELEGATED TO PLANNING COMMISSIONS

Our ruling that consideration of an application under the

Waiver Provision is legislative rather than administrative or

ministerial does not end our inquiry because “local governing

bodies may delegate the exercise of these legislative functions

to subordinate bodies, officers, or employees.” Helmick v. Town

of Warrenton, 254 Va. 225, 229, 492 S.E.2d 113, 115 (1997).

However, they may do so only “[i]f allowed by statute.” Id.

(emphasis added).

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

17
board 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”). Variances are to be

considered by the board of zoning appeals. Code §§ 15.2-2309(2)

and 15.2-2310.

But the General Assembly has not allowed local governing

bodies to delegate legislative decisions to planning

commissions. 8 To the contrary, delegation of such authority to

the planning commission is inconsistent with the general role of

planning commissions, as reflected by their enabling statutes.

The General Assembly requires every locality to “create a

local planning commission in order to promote the orderly

8
Even if the decision required to be made under the Waiver
Provision were merely ministerial or administrative and therefore
suitable for delegation without express statutory authority, the
decision to grant or deny a critical slope waiver application
cannot be delegated to a planning commission because such
decisions are incompatible with the nature of planning
commissions, whose powers, as discussed below, are strictly
enumerated by the General Assembly. We do not address whether an
ordinance allowing planning commissions to consider and recommend
a disposition of a critical slope waiver would be consistent with
the role contemplated for them by General Assembly as evidenced
by their existing statutory empowerments. Cf. Ours Props., 198
Va. at 849-50, 96 S.E.2d at 755-56 (noting the building permit
ordinance allowed the planning commission to recommend that the
building inspector grant or deny a permit, and that the planning
commission had recommended denial).
18
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. 9

For example, planning commissions are charged with preparing

comprehensive plans to recommend to the local governing body.

Code § 15.2-2223. 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

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 § 15.2-

2225; and to review the plan every five years to determine

9
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 vice-chairman, 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 § 15.2-2211 (power to adopt rules and appoint committees).
19
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 § 15.2-

2233, 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 § 15.2-

2251, 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

20
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.

They assert that the county’s delegation to the planning

commission is consistent with this broad authority. 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

21
ordinance. 10 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).

III. CONCLUSION

For the foregoing reasons we hold that the Waiver

Provision’s delegation of power to grant waiver applications to

the planning commission is legislative in nature, and such a

delegation 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. We therefore 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 deny waiver applications may be delegated to

10
A planning commission’s power to prepare and recommend a
zoning ordinance for approval by the local governing body, Code
§ 15.2-2285, does not include power to administer and enforce
such ordinances. While other states may have adopted different
zoning schemes, “[t]he 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.
22
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 judgment of the circuit court in its

entirety.

In ruling that the Waiver Provision delegates legislative

zoning power to the planning commission, the majority adopts a

theory that was not advanced by Sinclair in his complaint.

Therefore, my analysis is framed in accordance with the claims

that are set forth by Sinclair in counts I and II of his

complaint and were ruled upon by the circuit court in granting

the defendants’ motions for summary judgment.

I. COUNT I OF SINCLAIR’S COMPLAINT

In count I, Sinclair asserts the Waiver Provision is void

because it is in direct conflict with the Code provisions

governing zoning variances and zoning modifications. Count I

consists of 38 paragraphs and Sinclair summarizes these

paragraphs and his claim in count I as follows.

[The Waiver Provision] unlawfully violates state
statutorily prescribed standards by which a locality
may grant zoning modifications to an applicant to allow
deviation from the restrictions of a zoning ordinance

23
 (¶¶'s 30-71 below). It also unlawfully deprives
affected objecting adjacent property owners of
administrative appeal rights and further deprives them
of access to Circuit Court judicial remedies – which
are both required by state statute when a modification
of zoning restrictions is granted to an applicant over
objections (¶¶'s 72-78 below).

In upholding the circuit court’s judgment granting summary

judgment on count I of Sinclair’s complaint, the majority

concludes 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 Albemarle

County Code zoning ordinance expressly allows disturbance of

critical slopes upon compliance with the conditions promulgated by

the board of supervisors.

I agree the Waiver Provision is not a zoning variance or

modification since it is not a deviation from the zoning ordinance

but an integrated part of the ordinance. Because the Waiver

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
24
Provision is not a zoning variance or zoning modification as

asserted by Sinclair in count I, the Waiver Provision does not

“violate[] state statutorily prescribed standards by which a

locality may grant zoning modifications . . . to allow deviation

from the restrictions of a zoning ordinance.” Furthermore, the

Waiver Provision does not deprive objecting property owners of

“administrative appeal rights” and “access to Circuit Court

judicial remedies” that are “required by statute when a

modification of zoning restrictions is granted.” Therefore, I

concur in the majority’s holding that the circuit court did not

err in granting the defendants’ motions for summary judgment on

count I of Sinclair’s complaint. 3

II. COUNT II OF SINCLAIR'S COMPLAINT

In count II, Sinclair asserts that by permitting the planning

commission, rather than the zoning administrator or board of

application of the ordinance would produce undue hardship.” Code
§ 15.2-2286(A)(4).
3
I disagree, however, with the majority’s comparison of
the Waiver Provision to a special exception. A special
exception, also referred to as a special use, is “a use not
permitted in a particular district except by a special use permit
granted under the provisions of this chapter and any zoning
ordinances adopted herewith.” Code § 15.2-2201. The Waiver
Provision does not permit a specific use that is otherwise not
permitted in a particular district but applies to disturbance of
critical slopes regardless of the specific use approved in a
particular zoning district. In fact, the cellular transmission
tower objected to by Sinclair is a use permitted by right under
the zoning ordinance. Albemarle County Code § 18-10.2.1(22).
The Waiver Provision is not a mechanism to permit this use
because it is already permitted by right.
25
zoning appeals, to grant “zoning modifications” without complying

with the standards prescribed by the Code, the Waiver Provision is

void as being in violation of the Dillon Rule. Count II consists

of 41 paragraphs and is summarized by Sinclair in his complaint as

follows.

[The Waiver Provision] violates Dillon’s Rule by
unlawfully purporting to give the Planning Commission
power to grant such zoning modifications without
complying with the standards that the Code of Virginia
expressly requires for such zoning modifications, all
utterly without the required statutory authority. [The
Waiver Provision] further violates Dillon’s Rule by
usurping for the Planning Commission powers expressly
allocated by the Code of Virginia only to the Zoning
Administrator and Board of Zoning Appeals (“BZA”). See
Count II, ¶¶’s 79-120.

The basis of count II is Sinclair’s express assertion that the

“statutes confer variance and modification-granting authority on

the Zoning Administrator and the BZA.” Count II must necessarily

fail then since, as the majority concludes, the Waiver Provision is

not a mechanism for a zoning variance or modification. My analysis

would thus end here.

Despite its holding that the Waiver Provision is not a zoning

variance or modification, the majority nevertheless concludes the

circuit court erred in granting summary judgment on count II

because the Waiver Provision violates the Dillon Rule in delegating

legislative zoning power to the planning commission. In reaching

this conclusion, the majority ignores Sinclair’s actual assertion

in count II, which is that the Waiver Provision violates the Dillon

26
Rule because only a zoning administrator or board of zoning appeals

is empowered to grant zoning variances and modifications.

Therefore, the majority justifies its holding on a theory that was

not advanced in count II nor ruled upon by the circuit court. The

issues in a case are made by the complaint, which "is the sine qua

non of every judgment." No court can "render its judgment upon a

right, however meritorious, which has not been pleaded and

claimed." Ted Lansing Supply Co. v. Royal Aluminum & Constr.

Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 230 (1981) (quoting

Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521,

525 (1935)).

Notwithstanding the actual claim made by Sinclair in count II,

I disagree that the Waiver Provision is a delegation of legislative

zoning power. As the majority acknowledges, 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 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). Thus, “[c]onsiderable freedom to

exercise discretion and judgment must, of necessity, be accorded to

27
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. See

Code § 15.2-2285(A). 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).

Sinclair's complaint is based on his objection to approval

and construction of the cellular tower, which is a use permitted

by right. Albemarle County Code § 18-10.2.1(22). As he states in

his complaint, he has no right to appeal from the grant of

permission to construct the cellular tower. Instead, he is

challenging the Waiver Provision, which permits the approval of an

application to disturb a critical slope asserting that such

approval constitutes a zoning variance or modification. In

applying the Waiver Provision, however, the commission is not

permitted to modify a use permitted under the zoning ordinance nor

is it permitted to approve disturbance of a critical slope absent

the findings set forth by the board of supervisors. The Waiver

Provision allows the disturbance of critical slopes upon a finding

28
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. 4 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 practical, the ordinance left to
the [commission] charged to act under it merely the

4
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 man-
made 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).
29
 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). 5

The majority reasons that the Waiver Provision delegates

legislative zoning power by distinguishing certain facts in Ours

Properties. The majority initially notes that the building permit

in Ours Properties required the building inspector to consider

factors that the Court determined “have a well understood meaning,

and are intended to protect the public welfare, and to furnish a

pattern of conduct to guide a conscientious official in the

5
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).
30
performance of his duties under the ordinance.” Ours Props., Inc.,

198 Va. at 853, 96 S.E.2d at 758. The majority summarily states

that it is unable to determine that the “so-called” public health,

safety and welfare factors identified in the critical slopes

ordinance have a well-understood meaning or furnish a pattern of

conduct to guide the commission.

First, this ground has not been asserted by Sinclair.

Sinclair’s claim in count II is that the Waiver Provision violates

the Dillon Rule because it permits the planning commission to grant

zoning variances or modifications in violation of the Code

provisions governing zoning variances and modifications. Sinclair

does not assert that the Waiver Provision fails to prescribe

sufficient standards to guide the commission. Furthermore, the

legislative purpose of the critical slopes section of the zoning

ordinance and the factors by which the planning commission is

guided in carrying out that purpose are plainly set forth in

detailed language. 6 The majority does not explain how the factors

6
Section 18-4.2, entitled “Critical Slopes” states:

These provisions are created to implement the
comprehensive plan by protecting and conserving steep
hillsides together with public drinking water supplies
and flood plain areas and in recognition of increased
potential for soil erosion, sedimentation, water
pollution and septic disposal problems associated with
the development of those areas described in the
comprehensive plan as critical slopes. It is hereby
recognized that such development of critical slopes may
31
identified as public health, safety and welfare factors do not

“have a well understood meaning” or otherwise fail to “guide” the

commission in considering an application under the Waiver

Provision. The factors identified in § 18-4.2 and again in § 18-

4.2.5(a) of the ordinance are not alleged by Sinclair to be

ambiguous nor do I believe any such contention could be sustained. 7

result in: 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 in the event of septic system failure, a
greater travel distance of septic effluent, all of
which constitute potential dangers to the public
health, safety and/or welfare. These provisions are
intended to direct building and septic system locations
to terrain more suitable to development and to
discourage development on critical slopes, and to
supplement other regulations regarding protection of
public water supplies and encroachment of development
into flood plains.
7
The only factor identified by the majority is “loss of
aesthetic resources.” It is not clear if the majority views this
factor as being an invalid consideration of public welfare or as
not having a well-understood meaning. But the General Assembly’s
recognition that the aesthetic value of water, deemed a natural
resource, is a well-understood and valid consideration for public
health and welfare purposes cannot be questioned. See, e.g.,
Code § 10.1-1196(B) (guiding principle of watershed planning is
that “[p]oorly planned development can increase peak storm flows
and runoff volume, lower water quality and aesthetics, and cause
flooding and degradation of downstream communities and
ecosystems”) (emphasis added); Code § 32.1-170(A)(2) (regulations
of board of health governing waterworks, water supplies, and pure
water “shall be designed to protect the public health and promote
the public welfare” including minimum health and “aesthetic
standards” for pure water)(emphasis added); Code § 62.1-
10(b)(instream beneficial uses of all waters in the Commonwealth
include cultural and “aesthetic values”) (emphasis added); Code
§ 62.1-44.3 (the preservation of instream flows for the
protection of aesthetic values is a beneficial use of Virginia’s
waters) (emphasis added); Code § 62.1-242(same); Code § 62.1-
32
 In his complaint, Sinclair states that he “makes no

challenge” to “the declaration of purpose in section 18-4.2.”

Therefore, in concluding it is unable to determine that these

considerations “are intended to protect the public welfare,” the

majority takes a position that is expressly disclaimed by

Sinclair. Furthermore, the commission is not only guided, but

“shall consider” the determination by the county engineer who must

address these same factors and “evaluate the potential for soil

erosion, sedimentation and water pollution” under the provisions

of the Virginia Department of Transportation Drainage Manual, the

Commonwealth of Virginia Erosion and Sediment Control Handbook and

Virginia State Water Control Board best management practices.

Albemarle County Code § 18-4.2.5(a)(2). See also supra note 4.

The majority also distinguishes Ours Properties because the

building permit ordinance satisfied the requirements of due process

in that case. The applicant for the building permit in Ours

Properties specifically challenged the constitutionality of the

ordinance and claimed the ordinance conferred arbitrary power on

the building inspector “in violation of due process of law and of

the Fourteenth Amendment of the United States Constitution” and was

“void for vagueness.” Ours Props., Inc., 198 Va. at 850, 96 S.E.2d

at 756. Sinclair, however, has not claimed that the Waiver

246(A)(1) (state water control board may initiate surface water
management area proceeding when a stream has substantial instream
33
Provision is invalid because it violates due process. Rather,

Sinclair has alleged that the Waiver Provision does not incorporate

administrative appeal and circuit court review rights mandated for

zoning variances and modifications under the applicable Code

provisions. In fact, Sinclair asserted in the circuit court that

he does not claim the Critical Slopes ordinance is “arbitrary,

unreasonable or discriminatory.” Since we have determined that the

Waiver Provision does not constitute a mechanism for a zoning

variance or modification, the rights to review afforded under those

provisions are not applicable. 8

values as indicated by “aesthetic properties”) (emphasis added).
8
In suggesting third parties should have a right of review
of decisions allowing disturbance of critical slopes, the majority
characterizes the Waiver Provision as a “departure” from the zoning
ordinance. The majority’s characterization of the Waiver Provision
as a “departure” from the zoning ordinance is difficult to
reconcile with its conclusion that the Waiver Provision is not a
variance which is defined as a “reasonable deviation” from a zoning
ordinance. Code § 15.2-2201. I see no meaningful distinction
between the term “deviation,” which is used by Sinclair to describe
the Waiver Provision, and the term “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).
Furthermore, the majority states that decisions to grant or
deny such “departures” implicate important property rights
affording review under Code § 15.2-2311(A) (allowing an appeal to
the board of zoning appeals from a decision by the zoning
administrator to grant or deny a zoning modification) and Code
§ 15.2-2314 (allowing an appeal to the circuit court from a
decision of the board of zoning appeals with regard to a variance,
special exception, or zoning modification). Yet, as the majority
concluded, the Waiver Provision is not a zoning variance or
modification. There is no authority to support the proposition
that a decision which neither changes the use of the property
34
 Finally, the majority distinguishes Ours Properties reasoning

the building inspector was only permitted to “put into effect the

features controlled by the ascertained facts” whereas the Waiver

Provision confers upon the planning commission the power to grant

or deny a waiver application “or impose conditions in its sole

discretion.” The Waiver Provision does not, as the majority

states, give the planning commission the power to grant or deny a

waiver application upon making the required findings “or” to impose

conditions in its sole discretion. Rather, it provides that “[i]n

granting” the waiver, the commission “may impose conditions deemed

necessary to protect the public health, safety or welfare and to

insure that the development will be consistent with the intent and

purposes of section 4.2.” 9 Before it may grant the application,

however, the commission is required to make the findings set forth

in § 18-4.2.5(a)(3). While it may impose conditions to ensure

protection of the public health, safety and welfare factors set

permitted in a particular zoning district nor creates a special use
not otherwise permitted in a particular zoning district implicates
due process rights of third parties. See, e.g., Logan v. City
Council of the City of Roanoke, 275 Va. 483, 659 S.E.2d 296 (2008)
(without statutory authorization third party has no right to
challenge approval of subdivision plat).
9
This contention is also made by the majority in its
description of the Waiver Provision under section I of its
opinion when it states that the planning commission is authorized
to grant a waiver “after making certain findings or imposing
conditions it deems necessary.” As the language makes clear, the
commission is not given an alternative to either make the
required findings or impose conditions within its own discretion
before granting the application.
35
forth in the ordinance, it may not impose conditions in its sole

discretion in lieu of making the required findings necessary to

grant the application. Nor may it depart from the required

findings or change, in any way, the requirements for the

application. Furthermore, our discussion of the discretion

afforded the building inspector in Ours Properties was made in the

context of our holding that the ordinance did not confer arbitrary

and capricious power on the building inspector. Thus, the majority

again goes outside of the claim made in count II to justify its

holding. 10

III. CONCLUSION

In sum, I would confine the opinion in this matter to the

claims set forth in the complaint. Since counts I and II of the

complaint are premised on Sinclair’s assertion that the Waiver

Provision is a zoning variance or modification and, as the majority

concludes, the Waiver Provision is neither, it was not error for

the circuit court to enter summary judgment on both counts. In any

10
The majority concludes its rationale by finding the
Waiver Provision “functionally analogous” to a special exception,
despite the fact that Sinclair has consistently taken the
position that the Waiver Provision is not a special exception and
should not be treated as such. As noted above, the Waiver
Provision cannot be compared to a special exception, which is “a
use not permitted in a particular district except by a special
use permit granted under the provisions of this chapter and any
zoning ordinances adopted herewith.” Code § 15.2-2201. Even
more puzzling is the majority’s statement that “we do not decide
today” that the Waiver Provision is a special exception in light
of its treatment of the Waiver Provision as such.
36
event, I believe the majority’s attempt to find a delegation of

legislative power in the Waiver Provision is unpersuasive.

Although the majority concludes that the Waiver Provision is not a

zoning variance or modification, and does not decide that the

Waiver Provision is a special exception, it concludes the Waiver

Provision delegates legislative power to the planning commission

despite the fact that the Waiver Provision does not change,

deviate, depart from, specially create or otherwise affect the use

permitted under the applicable zoning classification. 11

11
In II.D., the majority explains why it believes a
delegation of legislative zoning power to a planning commission
is unlawful, despite the fact that defendants have not claimed
that legislative zoning power can be delegated to a planning
commission. Having already found that the board of supervisors
delegated legislative zoning power to the planning commission in
the Waiver Provision, there is simply no need to go further with
the analysis. Therefore, II.D. is unnecessary dicta.
37