Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Mims, JJ., and Russell, S.J.
ADVANCED TOWING COMPANY, LLC, ET AL.
OPINION BY
v. Record No. 091180 SENIOR JUSTICE CHARLES S. RUSSELL
June 10, 2010
FAIRFAX COUNTY BOARD OF SUPERVISORS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Bruce D. White, Judge
This appeal challenges the validity of a county ordinance
under the Equal Protection guarantee contained in the
Fourteenth Amendment to the federal constitution and under the
Dillon Rule. Because the case comes before us on demurrer, no
facts are in dispute and the appeal presents pure questions of
law. See e.g., Dreher v. Budget Rent-A-Car Sys., 272 Va. 390,
395, 634 S.E.2d 324, 327 (2006) (decision whether to grant
demurrer involves issues of law subject to de novo review).
Code § 46.2-1232(A) provides:
§ 46.2-1232. Localities may regulate removal
or immobilization of trespassing vehicles. – A. The
governing body of any county, city, or town may by
ordinance regulate the removal of trespassing
vehicles from property by or at the direction of the
owner, operator, lessee, or authorized agent in
charge of the property. In the event that a vehicle
is towed from one locality and stored in or released
from a location in another locality, the local
ordinance, if any, of the locality from which the
vehicle was towed shall apply.
Pursuant to that section, the Fairfax County Board of
Supervisors (the Board) adopted, as a part of the county code,
an ordinance regulating the towing of vehicles. Section 82-5-
32(e) of the ordinance provides, in pertinent part:
"Every site to which trespassing vehicles are towed
shall comply with the following requirement: (1) A
tow truck operator must tow each vehicle to storage
site located within the boundaries of Fairfax County
. . . ."
Proceedings
Advanced Towing Company, LLC, a firm having its principal
place of business in Arlington County, Roadrunner Wrecker
Service, Inc., a firm having its principal place of business
in Loudoun County, and King’s Towing, Inc., a firm having its
principal place of business in the City of Fairfax
(collectively, the Towing Companies) filed a complaint for
declaratory judgment in the circuit court against the Board,
contending that the territorial restriction contained in the
ordinance violated their Equal Protection rights secured by
the federal and state constitutions.
The Towing Companies alleged that they had contractual
obligations to property management companies in Fairfax County
for the removal of trespassing vehicles, that they were
exposed to possible prosecution for towing vehicles to their
storage lots located outside the county, that the ordinance
unfairly discriminated against them and in favor of businesses
located within the county, and that there was no rational
basis for such discrimination.
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The Board filed a demurrer, contending that the ordinance
was entitled to a strong presumption of validity and that the
complaint set forth no facts sufficient to overcome the
presumption. The court sustained the demurrer but gave the
Towing Companies leave to amend. The Towing Companies filed
an amended complaint, the Board again demurred and the court
again sustained the demurrer. The Towing Companies filed a
motion to reconsider in which they asserted an additional
ground for relief, challenging the ordinance as ultra vires
under the Dillon Rule, contending that the ordinance exceeded
the authority granted the county by the General Assembly.
The Board objected to the late assertion of the Dillon
Rule, but both parties briefed and argued it before the
circuit court, which considered and decided that question.
The court denied the motion to reconsider, adhered to its
previous rulings sustaining the Board’s demurrer, and entered
final judgment for the Board. We awarded the Towing Companies
an appeal.
Analysis
A. Equal Protection
Respect for the separation of the powers of the
legislative and judicial branches of government is an
essential element of our constitutional system. See Va.
Const. art. I, § 5 (providing that "the legislative,
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executive, and judicial departments of the Commonwealth should
be separate and distinct"). Unless a suspect classification
or a fundamental constitutional right is involved,
considerable deference must be accorded by the courts to
legislative policy choices.
Here, the Towing Companies and the Board agree that the
ordinance does not involve any suspect classification or
fundamental constitutional right. The territorial limitation
under consideration does not, therefore, require heightened
judicial scrutiny, but rather is subject to the most
deferential standard of judicial review, the “rational basis”
test. Exxon Corp. v. Eagerton, 462 U.S. 176, 195-96 (1983).
[E]qual protection is not a license for courts to
judge the wisdom, fairness, or logic of legislative
choices. In areas of social and economic policy, a
statutory classification that neither proceeds along
suspect lines nor infringes fundamental
constitutional rights must be upheld against [an]
equal protection challenge if there is any
reasonably conceivable state of facts that could
provide a rational basis for the classification.
. . . .
[A] legislative choice is not subject to courtroom
factfinding and may be based on rational speculation
unsupported by evidence or empirical data.
FCC v. Beach Communications, Inc., 508 U.S. 307, 313-15
(1993).
A legislative territorial limitation does not in itself
offend the Fourteenth Amendment. Cavalier Vending Corp. v.
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State Bd. of Pharmacy, 195 Va. 626, 634, 79 S.E.2d 636, 640
(1954). The courts must defer to such a legislative choice if
there is any reasonably conceivable state of facts that could
provide a rational basis for the classification. Beach
Communications, 508 U.S. at 313. Our analysis, therefore, is
limited to ascertaining whether such a state of facts could
have been within the rational contemplation of the Board when
framing its ordinance.
The Towing Companies point out that if the Board's
concern was the convenience of owners seeking to retrieve
their towed vehicles, such owners would be better served if
vehicles removed from the eastern part of Fairfax County,
which has an area exceeding 400 square miles, were towed to
nearby Arlington County, vehicles in the western part of the
county were towed to nearby Loudoun County, and vehicles towed
from the central part of the county were towed to the City of
Fairfax. Therefore, the Towing Companies argue, because all
their storage lots are located within 5 1/2 miles of the
Fairfax County line, any such basis for the territorial
restriction would be irrational.
The Board points to another basis justifying the
territorial limitation. The Fairfax County ordinance in
question contains a number of provisions regarding the
safeguarding of stored vehicles, including nighttime
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illumination, fencing, posted signs, and the like. The second
sentence of the enabling statute, Code § 46.2-1232(A), quoted
above, expressly contemplates that a locality may permit
vehicles to be towed to another locality for storage, and
provides in such event that the ordinance "of the locality
from which the vehicle was towed shall apply." The Board
points out that, notwithstanding that authorization, the
statute makes no provision for the enforcement of any of its
protective regulations in any other locality. Thus, the Board
argues, the only way to ensure that its regulations are
enforced is to confine the towing of vehicles to the area in
which its own officers have the authority to enforce them.
The Board’s argument, based entirely on the pleadings
before the court on demurrer, posits a “reasonably conceivable
state of facts that could provide a rational basis for the
classification” made by the ordinance under review. The
territorial limitation therefore survives analysis under the
Equal Protection guarantee of the Fourteenth Amendment. *
B. The Dillon Rule
Dillon’s Rule stipulates that municipal corporations have
only those powers expressly granted by statute, those
*
The Towing Companies’ complaint also referred to the
anti-discrimination provisions of Article I, Section 11 of the
Constitution of Virginia. Because no argument was presented
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necessarily implied therefrom, and those that are essential
and indispensable to the exercise of those expressly granted.
In Virginia, a corollary rule provides that boards of
supervisors of counties are similarly limited to those powers
conferred expressly or by necessary implication by statute.
Our cases refer to these principles collectively as the Dillon
Rule. See Arlington County Bd. v. White, 259 Va. 708, 710
n.1, 712, 528 S.E.2d 706, 707 n.1, 708 (2000); City of
Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 314, 316
(1999); Commonwealth v. Arlington County Bd., 217 Va. 558,
573-74, 232 S.E.2d 30, 40 (1977).
Further, our cases recognize the “reasonable selection of
method” rule, which permits local governing bodies to exercise
discretionary authority when a statutory grant of power has
been expressly made but is silent upon the mode or manner of
its execution. Arlington County Bd., 217 Va. at 574-75, 232
S.E.2d at 40-41.
In the present case, the power to regulate towing is
expressly granted to localities by Code § 46.2-1232(A).
Although that section clearly implies that localities may
permit vehicles to be towed outside their borders, it falls
far short of compelling them to do so. Subsection (B) of the
to the circuit court concerning that provision, we do not
consider it on appeal. Rule 5:25.
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statute prohibits any requirement in a local towing ordinance
that a towing business engage in any business other than a
towing and recovery business. Subsection (C) of the statute
contains an extensive list of requirements that a local towing
ordinance may impose on towing and recovery operators for the
protection of the public, but none of those are mandatory upon
the local governing bodies. All are permissive and none
relate to the locations to which vehicles may be towed. See
e.g., Harper v. Virginia Dep't of Taxation, 250 Va. 184, 194,
462 S.E.2d 892, 898 (1995) (explaining that "the word 'may' is
prima facie permissive, importing discretion . . .").
With respect to the territory within which vehicles are
to be stored after being towed, the statutory grant of power
to regulate towing is silent as to the manner of its
execution. It follows that the localities may exercise
reasonable discretion in prescribing, by ordinance, the
territory within which towed vehicles shall be stored without
contravening the Dillon Rule.
Conclusion
Because the circuit court correctly held that the
ordinance in question did not offend the Equal Protection
guarantee contained in the Fourteenth Amendment to the federal
constitution and did not contravene the Dillon Rule, we will
affirm the judgment.
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Affirmed.
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