Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Carrico and Koontz, S.JJ.
JOHN L. JENNINGS,
T/A JENNINGS BOATYARD, INC.
OPINION BY
v. Record No. 100068 CHIEF JUSTICE CYNTHIA D. KINSER
April 21, 2011
BOARD OF SUPERVISORS OF
NORTHUMBERLAND COUNTY
FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
Harry T. Taliaferro, III, Judge
In this appeal, a landowner with riparian rights who
operates a commercial marina/boatyard challenges a locality's
zoning authority to regulate the construction of additional
mooring slips and accompanying piers that would lie beyond the
mean low-water mark of a tidal, navigable body of water. The
landowner also challenges as void the locality's special
exception permit ordinance, claiming that the ordinance lacks
adequate standards to guide the governing body's decision to
grant or deny a special exception permit. Because we conclude
that the circuit court did not err in denying the landowner's
request for declaratory relief on either ground, we will affirm
the circuit court's judgment.
MATERIAL FACTS AND PROCEEDINGS
The facts essential to this appeal are undisputed. The
appellant, John L. Jennings, owns approximately 12.4 acres of
real property in Northumberland County (the County), part of
which fronts Cockrell's Creek, a tidal, navigable tributary of
the Chesapeake Bay. On this property, Jennings operates a
business known as "Jennings Boatyard Marina" (the Marina), "a
commercial marina/boatyard with 45 mooring slips and
accompanying piers." In March 2005, Jennings engaged a marine
design construction company to develop plans and submit
necessary applications for 46 additional mooring slips with
accompanying piers (the Project). The proposed slips would lie
approximately 300 to 400 feet beyond the mean low-water mark of
Cockrell's Creek. They are designed as "deep water slips" for
sailboats.
Subsequently, the marine design construction company
submitted a special exception permit application on Jennings'
behalf. The County's Board of Supervisors (the Board) initially
tabled the application, indicating that it wanted Jennings to
obtain a riparian rights survey. After obtaining the survey,
Jennings reduced the additional slips requested from 46 to 31 to
accommodate riparian lines. After a public hearing on Jennings'
application, the Board unanimously denied the special exception
permit. In a letter to Jennings, the County's zoning
administrator explained that the "Board felt that since there
are currently three (3) marinas in the area, including
[Jennings'], that have mooring slips available for boaters,
there would be no justification to allow an expansion at this
time."
2
Jennings filed an action seeking declaratory relief against
the Board. See Code §§ 8.01-184 and -186. Jennings alleged
that only the Virginia Marine Resources Commission (VMRC) has
authority to permit the placement of piers beyond the mean low-
water mark and therefore the County lacked jurisdiction to
regulate the Project through its special exception permit
process. The Board answered, stating that it had authority to
regulate beyond the mean low-water mark of the County's creeks
and rivers.
Jennings moved for summary judgment, asserting that the
County's zoning ordinances requiring a special exception permit
for the expansion of the Marina are invalid and void ab initio.
In ruling on that motion, the circuit court concluded that
"title to land below [the] mean low[-]water [mark] is in the
Commonwealth," and that "the VMRC has the exclusive right to
issue permits" authorizing use of that land. However, the court
rejected Jennings' argument that Code § 28.2-1203(A)(5), which
allows the construction of private noncommercial piers beyond
the mean low-water mark without VMRC's authorization, carves out
from VMRC's otherwise exclusive jurisdiction a locality's "sole
grant of authority . . . to zone in tidal[,] navigable waters."
The court instead reasoned that the "general grant of authority
to zone land . . . necessarily and fairly implie[s] that the
County[,] in zoning upland for a marina/boatyard[,] has the
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authority to regulate . . . piers and boat slips which are
necessarily all part of the same use." Thus, the circuit court
concluded that Jennings' "proposed expansion of piers and slips
may be constructed only pursuant to a permit from the VMRC, but
[is also] subject to the Northumberland County Zoning
Ordinance." The circuit court, accordingly, denied Jennings'
motion for summary judgment.
At a subsequent evidentiary hearing regarding the
reasonableness of the Board's denial of Jennings' application
for a special exemption permit, Jennings argued for the first
time that the County's special exception permit ordinances,
Northumberland Zoning Ordinance (NZO) §§ 148-95(A) and -138(A)
and (B), are void for lack of any "objective criteria stated."
Jennings also reiterated that the Board lacked zoning authority
over the Project because it would lie beyond the mean low-water
mark. The Board disputed, inter alia, Jennings' argument that
the County's ordinances are "inadequate." 1
In a letter opinion, the circuit court concluded that the
Board's denial of Jennings' special exemption permit application
1
The Board argued before the circuit court that Jennings
did not challenge "the adequacy of [the] special exception
ordinance" in his bill for declaratory relief and that the issue
therefore was not "before the [c]ourt." Because the circuit
court nevertheless ruled on that issue and the Board has not
assigned cross-error to the court's doing so, the issue is now
before this Court. See Rule 5:18(b).
4
"was not arbitrary, capricious and unreasonable." 2 Relying on
Bollinger v. Board of Supervisors, 217 Va. 185, 187, 227 S.E.2d
682, 683 (1976), the court further concluded "that the
[challenged ordinance] is not invalid for failure to state
standards to be applied by the Board in the issuance of a
special exception permit." Accordingly, the circuit court
entered an order denying the relief sought by Jennings.
Jennings appeals from the circuit court's judgment.
ANALYSIS
The primary issue now before us is whether the County's
zoning jurisdiction extends to the regulation of commercial
piers and marinas to be constructed on bottomlands that lie
beyond the mean low-water mark in the Commonwealth's tidal,
navigable waters. Secondarily, we must decide whether the
County's ordinance regulating the issuance of special exception
permits is void for lack of adequate standards. Both issues are
questions of law reviewed de novo by this Court. See Schefer v.
City Council, 279 Va. 588, 592, 691 S.E.2d 778, 780 (2010);
2
This Court did not award Jennings an appeal on his
assignment of error asserting that the Board's denial of his
special exception permit application was arbitrary and
capricious. Thus, that issue is not before us. Because the
Court awarded an appeal limited to Jennings' assignments of
error challenging the County's zoning authority over the Project
and the validity of the County's ordinance regarding special
exception permits, the rule requiring exhaustion of
administrative remedies does not apply. See Dail v. York
County, 259 Va. 577, 582, 528 S.E.2d 447, 449 (2000).
5
Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 416 & n.9,
690 S.E.2d 84, 87 & n.9 (2010).
"Zoning is a legislative power vested in the Commonwealth
and delegated by it, in turn, to various local governments for
the enactment of local zoning ordinances." Byrum v. Board of
Supervisors, 217 Va. 37, 39, 225 S.E.2d 369, 371 (1976); accord
National Mar. Union v. City of Norfolk, 202 Va. 672, 680, 119
S.E.2d 307, 312 (1961). Thus, a locality's zoning powers are
" 'fixed by statute and are limited to those conferred expressly
or by necessary implication.' " Board of Supervisors v.
Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 613
(1999) (quoting Board of Supervisors v. Horne, 216 Va. 113, 117,
215 S.E.2d 453, 455 (1975)). Localities have been delegated
authority to include in their zoning ordinances "reasonable
regulations and provisions" "[f]or the granting of special
exceptions under suitable regulations and safeguards[.]" Code
§ 15.2-2286(A)(3). A governing body is also authorized to
"reserve unto itself the right to issue such special
exceptions," "notwithstanding any other provisions of this
article." Id.
In Code § 15.2-2280, the General Assembly expressly granted
localities the authority to zone "the territory under its
jurisdiction." This authority extends to "regulat[ing],
restrict[ing], permit[ting], prohibit[ing], and determin[ing],"
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inter alia, "[t]he use of land, buildings, structures and other
premises for agricultural, business, industrial, residential,
flood plain and other specific uses" as well as "[t]he . . .
construction . . . of structures[.]" Code § 15.2-2280(1) and
(2). Thus, the County has express authority to regulate
Jennings' Project in accordance with the requirements of the
County's zoning ordinances if the bottomland in Cockrell's Creek
that lies seaward of the mean low-water mark is "territory under
[the County's] jurisdiction."
It is undisputed that such bottomland in Cockrell's Creek
that lies seaward of the mean low-water mark is "the property of
the Commonwealth," Code § 28.2-1200, 3 and that "the limits or
bounds" of Jennings' real property lying on Cockrell's Creek and
his "rights and privileges . . . extend to the mean low-water
mark but no farther." Code § 28.2-1202(A); Scott v. Burwell's
Bay Improvement Ass'n, 281 Va. ___, ___, ___ S.E.2d ___, ___
(2011) (this day decided). Also, neither party disputes VMRC's
regulatory authority over the bottomland in Cockrell's Creek
seaward of the mean low-water mark, see Scott, 281 Va. at ___,
___ S.E.2d at ___, also described as "state-owned bottomlands,"
Code § 28.2-101; see Code §§ 28.2-103, -1204, and -1205; or that
3
"All the beds of the bays, rivers, creeks and the shores
of the sea within the jurisdiction of the Commonwealth, not
conveyed by special grant or compact according to law, shall
remain the property of the Commonwealth." Code § 28.2-1200.
7
the County's zoning authority over all "the territory under its
jurisdiction" includes Jennings' real property, with its "rights
and privileges . . . extend[ing] to the mean low-water mark."
Code §§ 15.2-2280 and 28.2-1202(A). The dispute in this case
concerns whether both the County and the VMRC enjoy concurrent
regulatory authority over the Project to be constructed on
state-owned bottomlands.
As Jennings notes, the statutory provisions pertaining to a
locality's zoning authority, specifically Article 7, titled
"Zoning," in Chapter 22 of Title 15.2, provide no rule for
determining what "territory" is "under [a locality's]
jurisdiction" for purposes of zoning, with one exception. 4
However, Code § 15.2-3105 provides, in pertinent part, that
[t]he boundary of every locality bordering on the
Chesapeake Bay, including its tidal tributaries
(the Elizabeth River, among others), or the
Atlantic Ocean shall embrace all wharves, piers,
docks and other structures, except bridges and
tunnels that have been or may hereafter be
erected along the waterfront of such locality,
and extending into the Chesapeake Bay, including
its tidal tributaries (the Elizabeth River, among
others), or the Atlantic Ocean.
Jennings argues that this statute is not relevant to the
question before us because it is found in Article 1, titled
4
Code § 15.2-2281 provides that "the governing body of a
county shall have jurisdiction over all the unincorporated
territory in the county, and the governing body of a
municipality shall have jurisdiction over the incorporated area
of the municipality."
8
"Boundary Lines Established by Commissioners," in Chapter 31 of
Title 15.2. According to Jennings, Code § 15.2-3105 pertains
only to establishing boundaries as between localities. We do
not agree. This statute states that the boundaries of
localities "bordering on the Chesapeake Bay, including its tidal
tributaries . . . shall embrace all wharves, piers, docks and
other structures . . . erected along the waterfront of such
locality, and extending into the Chesapeake Bay, including its
tidal tributaries." Code § 15.2-3105. The territory under a
locality's jurisdiction subject to its zoning ordinances cannot
vary depending on the identity of the parties to the dispute.
Further, as the circuit court noted, "while [Code § 15.2-3105]
sets a rule for application in establishing county boundary
lines where the opposite banks of the creek are in different
counties, it does not follow either logic or the law that when
both sides of the creek are in the same county, piers built out
from the shore are not located within the boundaries of that
county."
Jennings argues that even if Code § 15.2-3105 is
applicable, VMRC's regulatory authority over the Commonwealth's
bottomlands is exclusive. Jennings bases that assertion on Code
§ 28.2-1200, which recognizes the Commonwealth's ownership of
bottomlands, and Code § 28.2-1204, which delegates authority to
VMRC to "[i]ssue permits for all reasonable uses of state-owned
9
bottomlands not authorized under" Code § 28.2-1203(A). That
statute requires a permit to be obtained from VMRC to "build
. . . upon" the Commonwealth's bottomlands. Code § 28.2-
1203(A). We disagree with Jennings' analysis.
The regulatory authority granted the VMRC by the General
Assembly does not preclude, but rather contemplates, that VMRC
and a locality will have concurrent authority to regulate the
construction of piers upon state-owned bottomlands where the
pier is also "erected along the waterfront of such locality."
Code § 15.2-3105. Pursuant to Code § 28.2-1203(A)(5), a permit
from VMRC is not required for the "placement of private piers
for noncommercial purposes by owners of the riparian lands in
the waters opposite those lands" if such piers conform to
certain specifications, but they remain "[s]ubject to any
applicable local ordinances." Thus, we hold that the circuit
court did not err in concluding that the County's zoning
authority "embrace[s]" the entirety of Jennings' proposed
construction, even the portion that "extend[s] into the
Chesapeake Bay['s] tidal tributaries," i.e., Cockrell's Creek.
Code § 15.2-3105.
The circuit court also did not err in holding that NZO
§ 148-138(A) is not "invalid for failure to state standards to
be applied by the Board in the issuance of a special exception[]
10
permit." NZO § 148-95(A)(21) 5 requires a special exception
permit for commercial or private, noncommercial marinas and
boatyards. Pursuant to NZO § 148-138(A), 6 special exception
permits "shall be subject to such conditions as the governing
body deems necessary to carry out the intent of this chapter,"
i.e., Chapter 148, styled "Zoning."
In Bollinger, this Court addressed whether a section of the
Roanoke County Code was unconstitutional because it failed to
provide adequate standards to guide the governing body's
decision whether to grant conditional use permits. 217 Va. at
186, 227 S.E.2d at 683. The challenged section of the Roanoke
County Code required a conditional use permit for certain uses
of real property, such as "borrow pits and sanitary fill method
garbage and refuse sites." Id. (internal quotation marks
omitted). That section of the county code also stated that
"[t]hese permits shall be subject to such conditions as the
governing body deems necessary to carry out the intent of this
chapter." Id. (internal quotation marks omitted). Virtually
the same language appears in NZO § 148-138(A). Because the
governing body there, like the County in this case, reserved
unto itself the power to issue conditional use permits, we held
5
This ordinance has been recodified as NZO § 148-
107(A)(21).
6
This ordinance has been recodified as NZO § 148-150(A).
11
that it was performing a legislative function when it granted or
denied such permits. Id. We further held that "zoning
ordinances enacted pursuant to [former Code § 15.1-491, now Code
§ 15.2-2286(A)(3),] need not include standards concerning
issuance of special use permits where local governing bodies are
to exercise their legislative judgment or discretion." Id. at
187, 227 S.E.2d at 683. The same conclusion applies to the
County ordinance at issue in this appeal. But see, e.g., Ames
v. Town of Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990)
(noting that "delegations of legislative power" from a
locality's governing body to a board of zoning appeals "are
valid only if they establish specific policies and fix definite
standards to guide the official, agency, or board in the
exercise of the power").
Jennings, nevertheless, contends that this Court's decision
in Cole v. City Council, 218 Va. 827, 241 S.E.2d 765 (1978),
compels a different conclusion. There, this Court addressed a
City of Waynesboro ordinance reserving to the City Council "'the
right to issue a special exception . . . permit whenever public
necessity and convenience, general welfare or good zoning
practice justifies such special exception.'" Id. at 832, 241
S.E.2d at 769 (emphasis added). We concluded that the ordinance
at issue was "fatally defective and invalid" because it reserved
to the
12
[City] Council the authority to issue a special
exception . . . permit for the construction of a
building in any zoning district in Waynesboro
whenever, in its sole discretion, such action is
justified by public necessity and convenience and
the general welfare. The ordinance gives [City]
Council an opportunity to grant a special
exception without a consideration of good zoning
practices or a consideration by it of the
purposes of the zoning ordinances of the city or
the objectives which zoning ordinances seek to
accomplish.
Id. at 833, 241 S.E.2d at 769.
As nothing in NZO § 148-138(A) authorizes the Board to
determine whether a special exception permit should be granted
outside "the framework of the zoning statutes and principles
that apply to zoning" or provides "an open invitation for a
special exception to be granted without any consideration being
given to certain basic principles of law applicable in the
zoning field," that ordinance is not void for lack of adequate
standards. Cole, 218 Va. at 833-34, 241 S.E.2d at 769-70; see
Bollinger, 217 Va. at 186-87, 227 S.E.2d at 683.
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
13