MARBLE TECHNOLOGIES v. City of Hampton

PRESENT: Keenan, Koontz, Kinser, Lemons, and Millette, JJ., and
Carrico and Lacy, S.JJ.

MARBLE TECHNOLOGIES, INC., ET AL.
OPINION BY
v. Record No. 090043 JUSTICE CYNTHIA D. KINSER
FEBRUARY 25, 2010
CITY OF HAMPTON, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge

This appeal involves the Chesapeake Bay Preservation Act,

Code §§ 10.1-2100 through –2115 (the Act), and its implementing

regulations. The dispositive issue asks whether the General

Assembly expressly or impliedly authorized a locality to utilize

as a criterion for designating Chesapeake Bay Preservation Areas

within its jurisdiction whether particular land is among the

"lands designated as part of the Coastal Barrier Resources

System," which is created by the Coastal Barrier Resources Act,

16 U.S.C. §§ 3501 through 3510 (2006 & Supp. II 2008) (the

federal Act). Because we conclude that a locality is not

expressly or impliedly authorized to do so, we will reverse the

judgment of the circuit court.

MATERIAL FACTS AND PROCEEDINGS

The Act requires, inter alia, "the counties, cities, and

towns of Tidewater Virginia [to] incorporate general water

quality protection measures into their comprehensive plans,

zoning ordinances, and subdivision ordinances." Code § 10.1-
2100(A)(i); see also Code § 10.1-2109(B)-(D); 9 VAC § 10-20-10. 1

To further the Act's implementation, the General Assembly

established the Chesapeake Bay Local Assistance Board (the

Board), Code § 10.1-2102, and in Code § 10.1-2107 authorized the

Board to "promulgate regulations which establish criteria for

use by local governments to determine the ecological and

geographic extent of Chesapeake Bay Preservation Areas," that

is, the "area delineated by a local government in accordance

with [the Board's] criteria" and thereby made subject to the

Act's restrictions. Code § 10.1-2101; see also 9 VAC § 10-20-

40. A Chesapeake Bay Preservation Area consists "of a Resource

Protection Area [RPA] and a Resource Management Area." 9 VAC

§§ 10-20-40 and 10-20-70. 2

1
The term "Tidewater Virginia" includes the City of Hampton
and a number of other jurisdictions. Code § 10.1-2101. "Any
local government . . . not a part of Tidewater Virginia may
. . . incorporate protection of the quality of state waters into
their comprehensive plans, zoning ordinances and subdivision
ordinances." Code § 10.1-2110; see also 9 VAC § 10-20-10.
2
The term "'Resource Protection Area' means that component
of the Chesapeake Bay Preservation Area comprised of lands
adjacent to water bodies with perennial flow that have an
intrinsic water quality value due to the ecological and
biological processes they perform or are sensitive to impacts
which may result in significant degradation to the quality of
state waters." 9 VAC § 10-20-40. A "'Resource Management Area'
[is] that component of the Chesapeake Bay Preservation Area that
is not classified as the Resource Protection Area." Id.

2
 Pursuant to this authority, the Board promulgated criteria

for a locality to utilize in designating lands within its

jurisdiction to be included in an RPA. 9 VAC § 10-20-80.

The Board's regulation establishes these relevant criteria:

A. At a minimum, Resource Protection Areas
shall consist of lands adjacent to water bodies with
perennial flow that have an intrinsic water quality
value due to the ecological and biological processes
they perform or are sensitive to impacts which may
cause significant degradation to the quality of state
waters. In their natural condition, these lands
provide for the removal, reduction or assimilation of
sediments, nutrients and potentially harmful or toxic
substances in runoff entering the bay and its
tributaries, and minimize the adverse effects of human
activities on state waters and aquatic resources.

B. The Resource Protection Area shall include:

1. Tidal wetlands;

2. Nontidal wetlands connected by surface
flow and contiguous to tidal wetlands or
water bodies with perennial flow;

3. Tidal shores;

4. Such other lands considered by the local
government to meet the provisions of
subsection A of this section and to be
necessary to protect the quality of state
waters; and

5. A buffer area not less than 100 feet in width
located adjacent to and landward of the
components listed in subdivisions 1 through 4
above, and along both sides of any water body
with perennial flow.

9 VAC § 10-20-80(A)-(B); see also 9 VAC § 10-20-40.

3
 As directed by Code § 10.1-2109, the City of Hampton (the

City) amended its zoning ordinance in 1990, creating Article Ten

of the City's Zoning Code, which is entitled "Chesapeake Bay

Preservation District," "to implement the Chesapeake Bay

Preservation Act at the local level." 3 City Zoning Ordinance

§ 17.3-60. In January 2008, the City took the action at issue

in this appeal, amending its definition of the buffer area of an

RPA. Now the buffer area is defined as "[a] variable width

buffer area not less than one hundred (100) feet in width. . . .

The variable width buffer area shall also include lands

designated as part of the Coastal Barrier Resources System not

otherwise listed as a Resource Protection Area Feature where

present." 4 City Zoning Ordinance § 17.3-62(16)(iv). The City

3
In contrast to the Board's criteria for an RPA, the City's
zoning ordinance includes only the first three components of an
RPA set forth in 9 VAC § 10-20-80(B) and a buffer area,
foregoing the catchall component for "other lands." 9 VAC § 10-
20-80(B)(4).
4
The City Zoning Ordinance defines the term "'Coastal
Barrier Resources System'" as "an area comprised of undeveloped
barrier islands and associated wetlands as designated under the
Coastal Barrier Resources Act." City Zoning Ordinance § 17.3-
62(5). The lands included in the Coastal Barrier Resources
System are designated on a map maintained by the Secretary of
the Interior and may be revised by the Secretary or by an act of
Congress. See 16 U.S.C. § 3503; cf. Bostic v. United States,
753 F.2d 1292, 1293-94 (4th Cir. 1985).

4
also amended its buffer area requirements for RPAs to

incorporate the new definition. City Zoning Ordinance § 17.3-

64(2)(b)(iii)(3).

Marble Technologies, Inc. and Shri Ganesh, LLC

(collectively, the plaintiffs), own two separate parcels of land

located in the "Grand View" section of the City. According to

the plaintiffs, the "developable area" of their parcels was not

included in an RPA or its buffer area prior to the 2008

amendment to the City zoning ordinance. Following the

amendment, the plaintiffs' parcels fell entirely "within the RPA

portion of the City's Chesapeake Bay Preservation District"

because the parcels are included in the Coastal Barrier

Resources System. The plaintiffs contend that their parcels are

thus subject to additional development restrictions. 5

Shortly after the amendment's passage, the plaintiffs filed

a complaint seeking "declaratory and injunctive relief

prohibiting the City's enforcement of the amendment as it

The City Zoning Ordinance defines the term "Resource
Protection Area (RPA) Feature" as "that portion of an RPA that
is not in the buffer area" and includes only the first three
components listed in Subsection B of 9 VAC § 10-20-80 and City
Zoning Ordinance § 17.3-62(16). City Zoning Ordinance § 17.3-
62(17).
5
For example, land designated as part of the Coastal
Barrier Resources System is "ineligible . . . for federal flood
insurance on either new construction or substantial improvements
to existing structures." Bostic, 753 F.2d at 1293-94 (citing 42
U.S.C. § 4028).

5
applies to the [p]laintiffs' property." 6 The plaintiffs alleged,

among other things, that the City had "exceeded its authority in

violation of Virginia law and Dillon's [R]ule." In response,

the City demurred, arguing that the plaintiffs could not prevail

because they "failed to allege that the challenged ordinances

are 'unreasonable, arbitrary or capricious,'" did not exhaust

available administrative remedies before seeking declaratory

relief, and "failed to plead the necessary facts to give rise to

injunctive relief." 7

The plaintiffs countered that the "arbitrary and capricious

standard only arises in 'as applied' challenges," which they

were not making. Instead, the plaintiffs maintained that they

were seeking a declaration that the 2008 amendment violates

Dillon's Rule and is therefore void. According to the

plaintiffs, the exhaustion of administrative remedies rule was

also not applicable because they were claiming the City exceeded

its authority. Finally, the plaintiffs asserted that they had

"alleged sufficient facts to request either preliminary or

permanent injunctive relief."

6
The plaintiffs named the City of Hampton as well as the
City Council of the City of Hampton as defendants.
7
The City also filed a "Plea in Bar" and "Motion to Drop"
that the circuit court denied. Those rulings are not challenged
in this appeal. See Rules 5:17(c) and 5:18(b).

6
 Following a hearing, the circuit court overruled in part

and sustained in part the City's demurrer, dismissing with

prejudice the plaintiffs' request for injunctive relief. The

court explained that an injunction would be unnecessary if the

plaintiffs obtained declaratory relief. Thus, the circuit court

stated that "the sole issue" that remained was "whether the City

acted ultra vires in passing this amendment to the zoning

ordinance." Shortly thereafter, the City answered the

complaint, and the parties filed motions for summary judgment.

In support of their motion for summary judgment, the

plaintiffs argued that the 2008 zoning "[a]mendment

impermissibly permits the federal government to alter the City's

zoning scheme without further action of the City Council in

violation of the Dillon Rule," as the General Assembly has not

"express[ly] or implcit[ly] grant[ed localities the] authority

to delegate any portion of" the responsibility for designating

RPAs within the locality's jurisdiction. The plaintiffs

maintained that because the General Assembly authorized only

localities to designate lands subject to the Act's restrictions,

the City did not have authority to incorporate land into an RPA

by referencing the Coastal Barrier Resources System. The City,

however, maintained that the General Assembly had "expressly and

implicitly grant[ed] the City the power to enact the challenged

7
ordinances," which must be "presumed valid and constitutional." 8

The plaintiffs countered that the presumption of validity urged

by the City "does not apply to a court's determination under the

Dillon Rule as to whether the locality has any authority to

act," and that the City had not been granted the authority

claimed.

After a hearing on the motions for summary judgment, the

circuit court held that "the amendment is valid [and] does not

violate Dillon's Rule" because "[t]he statute gives [the City]

[this] authority." The court concluded that the City possessed

"both" express and implied authority to pass the 2008 amendment.

Accordingly, the circuit court granted the City's motion for

summary judgment, denied the plaintiffs' motion, and entered

judgment for the City. This appeal followed.

ANALYSIS

The issue we decide is whether the General Assembly

expressly and/or impliedly authorized localities, through the

Act or the regulations passed pursuant thereto, to utilize as a

criterion for designating lands to be included in an RPA whether

particular land is part of the federal Act's Coastal Barrier

Resources System. This issue is one of law, which we review de

8
The City also once again asserted that the plaintiffs had
not exhausted their administrative remedies.

8
novo. 9 Board of Zoning Appeals v. Board of Supervisors, 276 Va.

550, 552, 666 S.E.2d 315, 316 (2008).

Contrary to the City's argument that the zoning amendment

at issue, as the legislative enactment of a locality, must be

presumed valid unless proven to be clearly unreasonable,

arbitrary, or capricious, "the Dillon Rule is applicable to

determine in the first instance, from express words or by

implication, whether a power exists at all. If the power cannot

be found, the inquiry is at an end." 10 Commonwealth v. Board of

9
In June 2008, the Board reviewed the City's "revised Phase
I program," which included the zoning amendments at issue, and
concluded that the revised program was "consistent with § 10.1-
2109 of the Act and §§ 9 VAC 10-20-60 1 and 2 of the
Regulations," subject to one modification. The plaintiffs
assert that the circuit court unduly relied on the Board's
conclusion. While the City disputes that assertion, it
nevertheless argues that the Board's review "is strong, arguably
conclusive evidence that the challenged ordinance is consistent
with the Act, is valid and does not violate the Dillon Rule."
Without deciding what weight, if any, the circuit court gave to
the Board's conclusion, we reiterate that our review is de novo.
10
[W]here a power is found to exist but the question
is whether it has been exercised properly, then the
"reasonable selection of method" rule may be
applicable, and . . . the inquiry is directed to
whether there may be implied the authority to execute
the power in the particular manner chosen.

Commonwealth v. Board of Arlington County, 217 Va. 558, 575, 232
S.E.2d 30, 41 (1977).

If a locality has the authority to enact a particular
zoning ordinance, then

[i]ts action is presumed to be valid so long as it is
not unreasonable and arbitrary. The burden of proof

9
Arlington County, 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977);

see also City Council of Alexandria v. Lindsey Trusts, 258 Va.

424, 427, 520 S.E.2d 181, 182 (1999) (" 'The Dillon Rule of

strict construction controls our determination of the powers of

local governing bodies.' ") (citation omitted).

The Dillon Rule provides that "municipal corporations have

only those powers that are expressly granted, those necessarily

or fairly implied from expressly granted powers, and those that

are essential and indispensable." Board of Zoning Appeals, 276

Va. at 553-54, 666 S.E.2d at 317; accord Board of Supervisors v.

Countryside Investment Co., 258 Va. 497, 502-05, 522 S.E.2d 610,

612-14 (1999); City of Richmond v. Confrere Club of Richmond,

239 Va. 77, 79, 387 S.E.2d 471, 473 (1990). This is so because

"[a] municipal corporation has no element of sovereignty. It is

a mere local agency of the state, having no other powers than

such as are clearly and unmistakably granted by the law-making

power." Whiting v. Town of West Point, 88 Va. 905, 906, 14 S.E.

is on him who assails it to prove that it is clearly
unreasonable, arbitrary or capricious, and that it
bears no reasonable or substantial relation to the
public health, safety, morals, or general welfare.

Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d
390, 395 (1959); accord Cupp v. Board of Supervisors, 227 Va.
580, 596-97, 318 S.E.2d 407, 415-16 (1984). "[I]f the
reasonableness of a zoning ordinance is fairly debatable[,] it
must be sustained." Carper, 200 Va. at 660, 107 S.E.2d at 395;
accord Cupp, 227 Va. at 597, 318 S.E.2d at 416.

10
698, 699 (1892); see Hunter v. City of Pittsburgh, 207 U.S. 161,

178 (1907) ("Municipal corporations are political subdivisions

of the State, created as convenient agencies for exercising such

of the governmental powers of the State as may be entrusted to

them."). Thus, "[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); accord

Confrere Club, 239 Va. at 79-80, 387 S.E.2d at 473; City of

Winchester v. Redmond, 93 Va. 711, 714, 25 S.E. 1001, 1002

(1896).

In applying the Dillon Rule, we first examine the plain

terms of the legislative enactment to determine whether the

General Assembly expressly granted a particular power to the

municipal corporation. See City of Chesapeake v. Gardner

Enters., 253 Va. 243, 246-47, 482 S.E.2d 812, 814-15 (1997). If

the power is not expressly granted, we then "determine whether

the power . . . is necessarily or fairly implied from the powers

expressly granted by the statute." Id. at 247, 482 S.E.2d at

815. "To imply a particular power from a power expressly

granted, it must be found that the legislature intended that the

grant of the express also would confer the implied." Board of

Arlington County, 217 Va. at 577, 232 S.E.2d at 42. "Questions

concerning implied legislative authority of a local governing

11
body are resolved by analyzing the legislative intent of the

General Assembly." Tabler v. Board of Supervisors, 221 Va. 200,

202, 269 S.E.2d 358, 360 (1980). "Legislative intent is

determined from the plain meaning of the words used." Confrere

Club, 239 Va. at 80, 387 S.E.2d at 473; see Logan v. City

Council, 275 Va. 483, 492, 659 S.E.2d 296, 301 (2008) ("We

determine the General Assembly's intent from the words employed

in the statutes."). Thus, "[t]he central focus of our analysis

[in applying the Dillon Rule] is to ascertain and give effect to

the General Assembly's intent in enacting the provisions." Id.

With these principles in mind, we proceed to the question

before us: whether the General Assembly expressly or impliedly

authorized the City to use as a criterion for designating RPAs

in its jurisdiction whether particular land is included in the

Coastal Barrier Resources System pursuant to the federal Act.

The General Assembly expressly authorized counties, cities, and

towns "to exercise their police and zoning powers to protect the

quality of state waters consistent with the provisions" of the

Act. Code § 10.1-2108. That authority, however, is limited to

using the criteria created by the Board. The provisions of Code

§ 10.1-2100(A)(ii) direct localities to "define and protect"

Chesapeake Bay Preservation Areas "in accordance with criteria

established by the Commonwealth." The Act, in Code § 10.1-

2109(A) and (C), mandates that localities "use the criteria

12
developed by the Board to determine the extent of the Chesapeake

Bay Preservation Area within their jurisdictions," and directs

"[z]oning in Chesapeake Bay Preservation Areas [to] comply with

all criteria set forth in or established pursuant to [Code]

§ 10.1-2107," which is the provision empowering the Board to

develop "criteria for use by local governments to determine the

ecological and geographic extent of Chesapeake Bay Preservation

Areas." Code § 10.1-2107(A). The provisions of Code § 10.1-

2111 reiterate that "[l]ocal governments shall employ the

criteria promulgated by the Board to ensure that the use and

development of land in Chesapeake Bay Preservation Areas shall

be accomplished in a manner that protects the quality of state

waters consistent with the provisions of [the Act]." And the

definition given the term "Chesapeake Bay Preservation Area" is

that of "an area delineated by a local government in accordance

with criteria established pursuant to § 10.1-2107." 11 Code

§ 10.1-2101. Thus, we conclude the General Assembly expressly

authorized localities to designate lands subject to the Act

within their jurisdictions pursuant to the Board's criteria.

In relevant part, the Board's criteria require a locality

to include in an RPA the following components:

11
The regulations state that the Board "establishes the
criteria that counties, cities and towns . . . shall use to
determine the extent of the Chesapeake Bay Preservation Areas
within their jurisdictions." 9 VAC § 10-20-30(B).

13
 1. Tidal wetlands;

2. Nontidal wetlands connected by surface flow and
contiguous to tidal wetlands or water bodies with
perennial flow;

3. Tidal shores;

4. Such other lands considered by the local government
to meet the provisions of subsection A of this section
and to be necessary to protect the quality of state
waters; and

5. A buffer area not less than 100 feet in width located
adjacent to and landward of the components listed in
subdivisions 1 through 4 above, and along both sides of any
water body with perennial flow.

9 VAC § 10-20-80(B). Subsection C of that section states that

"[d]esignation of the components listed in subdivisions 1-4 of

subsection B of this section shall not be subject to

modification unless based on reliable, site-specific information

as provided for in 9 VAC [§] 10-20-105 and subdivision 6 of 9

VAC [§] 10-20-130." And subsection D mandates that "local

government[]" determinations of "whether water bodies have

perennial flow" must be done according to one of two methods and

that "site-specific determinations shall be made or confirmed by

the local government pursuant to 9 VAC [§] 10-20-105."

In sum, the Board's criteria mandate that certain lands be

included in an RPA and authorize the inclusion of "other lands"

that both "meet the provisions of subsection A" and are

14
"necessary to protect the quality of state waters." 12 After

designating lands encompassed by subsections B (1) through (4),

the locality must designate a "buffer area not less than 100

feet in width located adjacent to and landward of the components

listed" in subsections B (1) through (4) and "along both sides

of any water body with perennial flow." 9 VAC § 10-20-80(B)(5).

The foregoing review demonstrates that the General

Assembly, acting through the Board, neither expressly nor

impliedly granted localities the authority to designate RPAs

based on criteria established by the federal government.

Instead, the designations must be based on criteria established

by the Board. See Code §§ 10.1-2100(A)(ii) and -2109. And, the

Board's criteria do not include "lands designated as part of the

Coastal Barrier Resources System not otherwise listed as a

Resource Protection Area Feature." City Zoning Ordinance

§ 17.3-62(16)(iv).

The City argues that its inclusion of lands covered by the

federal Act in the buffer area is authorized by the "other

12
The City argues that the phrase "[a]t a minimum" in the
first sentence of subsection A of 9 VAC § 10-20-80 means that
localities are authorized to include additional lands in
designating RPAs and are not restricted to those described in
subsection A of 9 VAC § 10-20-80. While the phrase "at a
minimum" certainly suggests expansion, the General Assembly's
intent that the criteria established by the Board be utilized to
designate RPAs, and not alternative, locality-selected criteria,
is clear. Code § 10.1-2109.

15
lands" component, subdivision (4) of 9 VAC § 10-20-80(B). This

argument is without merit. First, the Board's regulation treats

lands designated under subsection B's "other lands" provision as

separate from the buffer area, which is "located adjacent to and

landward of the components listed in subdivisions 1 through 4."

9 VAC § 10-20-80(B)(4),(5). Second, the regulations do not

authorize a "variable width buffer area" within a particular

locality, but only authorize localities to designate uniform

buffer areas of "not less than 100 feet in width." 9 VAC § 10-

20-80(B)(5). The central reason why the City's argument is

unavailing, however, is because the Board's criteria do not

mention the federal Act or imply that a parcel's inclusion

pursuant to the federal Act, as land the development of which

the federal government does not want to encourage through

"Federal expenditures and financial assistance," has any bearing

upon, much less serves as a determinative factor when,

designating land as part of an RPA. 13 16 U.S.C. § 3501(b).

13
The City maintains that designating lands in buffer area
on the basis of whether they are included Coastal Barrier
Resources System is authorized by 9 VAC § 10-20-110's statement
that "[t]he criteria may be employed in conjunction with other
planning and zoning concepts to protect the quality of state
waters." We reject this argument. "The criteria" noted above
are found in Part IV of the regulations that govern the "use,
development or redevelopment of land in Chesapeake Bay
Preservation Areas," 9 VAC § 10-20-120 and § 10-20-130, and the
maintenance of "[n]onconforming uses" and other exemptions and
exceptions from the requirements of the Act, 9 VAC § 10-20-150.
Part III of the regulations, specifically 9 VAC § 10-20-80,

16
 Thus, the City ordinance, which makes inclusion in the

Coastal Barrier Resources System a criterion for designating

lands part of an RPA, violates the General Assembly's express

mandate that a locality "use the criteria developed by the Board

to determine the extent of the Chesapeake Bay Preservation Area

within [its] jurisdiction[]." 14 Code § 10.1-2109(A). See

Countryside, 258 Va. at 504-05, 522 S.E.2d at 613-14.

Accordingly, the City's 2008 zoning amendments challenged in

this appeal are void insofar as they include lands in its RPAs

on the basis of the federal Act's applicability.

contains the criteria governing the designation of RPAs.

14
In reaching this conclusion, we do not express any
opinion as to the propriety of a locality's looking to or
incorporating federal standards when authorized by legislation
to do so, and merely reaffirm the principle that even when a
locality exercises discretion in the application of regulatory
regimes, it is limited to the authority expressly or impliedly
granted by the General Assembly.

17
 CONCLUSION

For these reasons, we will reverse the judgment of the

circuit court and enter final judgment in favor of Marble

Technologies, Inc. and Shri Ganesh, LLC. 15

Reversed and final judgment.

15
The City argues that an independent ground exists for
affirming the circuit court's judgment, i.e., that the
plaintiffs did not exhaust their administrative remedies. While
the City raised this argument in both its demurrer and motion
for summary judgment, the circuit court clearly stated after
ruling on the demurrer that the "sole issue" remaining was
"whether the City acted ultra vires in passing this amendment to
the zoning ordinance." Thus, we find no merit in the City's
argument.

In light of our decision, it is not necessary to address
the remaining assignments of error.

18