Present: Hassell, C.J., Keenan, Kinser, Lemons, Agee, ∗ and
Goodwyn, JJ., and Lacy, S.J.
BOARD OF ZONING APPEALS OF
FAIRFAX COUNTY
v. Record No. 071395 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
BOARD OF SUPERVISORS OF September 12, 2008
FAIRFAX COUNTY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge
The sole issue in this appeal is whether the circuit
court erred in dismissing a declaratory judgment action filed
by the Board of Zoning Appeals of Fairfax County (BZA) against
the Board of Supervisors of Fairfax County (Board of
Supervisors) based on the court’s conclusion that the BZA does
not have the authority to institute litigation on its own
behalf.
The BZA’s declaratory judgment action was prompted by
certain positions taken by the County regarding the BZA. In
2004, the Fairfax County Executive sent a letter to the BZA
stating that the Board of Supervisors “will no longer pay for
private legal counsel to represent the BZA and will not permit
the County Attorney or his staff to represent the BZA” except
when the BZA is alleged to have violated the Virginia Freedom
of Information Act, Code §§ 2.2-3700 through -3714, or when
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Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
BZA members are sued individually in their official
capacities. In a subsequent letter, the County Executive
informed the BZA that it was not “authorized to hire private
legal counsel to act in a capacity that is adverse to the
interests of the Board of Supervisors . . . or the Zoning
Administrator of Fairfax County.” Prior to this time, the
County Attorney or private counsel defended the BZA in
certorari proceedings filed pursuant to Code § 15.2-2314. In
2005, the Fairfax County Attorney separately asserted in a
letter to the then Chief Judge of the Nineteenth Judicial
Circuit that, pursuant to Code § 15.2-2308(A), the Circuit
Court of Fairfax County could not make appointments to the BZA
without the concurrence of the Board of Supervisors.
In 2006, the BZA filed this declaratory judgment
proceeding, seeking a declaration that the BZA was entitled to
have the Board of Supervisors “appropriate and pay” litigation
expenses and reasonable sums for legal counsel chosen by the
BZA in certiorari proceedings pursuant to Code § 15.2-2314 and
in “any litigation arising from the BZA’s performance of its
public functions.” The BZA also sought a declaration that the
Fairfax County Circuit Court could appoint members of the BZA
without the concurrence of the Board of Supervisors. The
Board of Supervisors filed a demurrer arguing, inter alia,
that the BZA was a “creature of statute” and no statute
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conferred upon the BZA the authority to sue the Board of
Supervisors “or anyone else.” The circuit court agreed with
the Board of Supervisors, granted the demurrer and dismissed
the declaratory judgment action. The BZA filed a timely
appeal in this Court.
DISCUSSION
The sole issue on appeal - whether the BZA has the
authority to file this declaratory judgment action - is an
issue of law which we review de novo. Glazebrook v. Board of
Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).
We have consistently held that boards of zoning appeals
are “creatures of statute possessing only those powers
expressly conferred.” Board of Zoning Appeals v. Cedar Knoll,
Inc., 217 Va. 740, 743, 232 S.E.2d 767, 769 (1977); Lake
George Corp. v. Standing, 211 Va. 733, 735, 180 S.E.2d 522,
523 (1971). The BZA concedes that no Virginia statute
expressly grants the BZA the authority to institute litigation
on its own behalf. Nevertheless, the BZA argues that our
decisions such as Cedar Knoll and Lake George are not
dispositive of this issue. The BZA argues that under Dillon’s
Rule a public body derives its powers in three distinct ways -
powers that are expressly authorized by statute, powers fairly
or necessarily implied from the express powers, and powers
that are essential and indispensable. The BZA argues that
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while our decisions in Lake George and Cedar Knoll precluded a
board of zoning appeals from acquiring a power by virtue of
the second component or “corollary” of Dillon’s Rule, that is,
powers fairly or necessarily implied from expressed powers,
neither case addressed the application of the third component
or “corollary.” The BZA identifies this third “corollary” as
powers afforded a public body because such powers are
essential and indispensable to the performance of the public
body’s duties. This “corollary” of Dillon’s Rule, the BZA
continues, was acknowledged in City of Portsmouth v. Virginia
Railway and Power Co., 141 Va. 54, 61, 126 S.E. 362, 364
(1925), with regard to the powers of the State Corporation
Commission, also a “creature of statute.” That case,
according to the BZA, provides the basis for concluding in
this case that the BZA has the power to sue on its own behalf
because such power is necessary and essential to enable the
BZA to exercise the powers expressly granted it. We reject
the BZA’s position because it is based on a misperception of
the “corollary” of Dillon’s Rule and misapplication of City of
Portsmouth.
City of Portsmouth did not involve a “corollary” to
Dillon’s Rule. In fact, Dillon’s Rule was not mentioned in
that case. The issue was whether the State Corporation
Commission had the authority to abrogate an obligation imposed
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under the terms of the franchise between the city and the
Virginia Railway and Power Company, a public utility subject
to the Commission’s jurisdiction. City of Portsmouth, 141 Va.
at 56-57, 126 S.E. at 362. In resolving the issue, the Court
recited that the Commission’s authority stemmed from
constitutional and statutory grants but cautioned that those
provisions should be liberally construed to give the
Commission not only powers expressly granted, but also powers
fairly implied from the language or necessary to allow
exercise of expressly granted powers. Id. at 61, 126 S.E. at
364. Although this description of the Commission’s powers is
consistent with Dillon’s Rule, the Court never characterized
the grant of authority as derived from Dillon’s Rule and
ultimately held that the Commission did not have the express
authority to abrogate the franchise obligation. Id.
Therefore, our decision in City of Portsmouth does not support
the position advanced by the BZA in this case.
More importantly, the BZA’s interpretation of Dillon’s
Rule and its “corollary” is incorrect. Dillon’s 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. City of Chesapeake v. Gardner Enters., 253 Va.
243, 246, 482 S.E.2d 812, 814 (1997); accord Ticonderoga Farms
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v. County of Loudoun, 242 Va. 170, 173-74, 409 S.E.2d 446, 448
(1991); City of Richmond v. Confrere Club of Richmond, 239 Va.
77, 79, 387 S.E.2d 471, 473 (1990). The corollary to Dillon’s
Rule does not refer to sources from which a municipal
corporation derives its power but to the application of the
rule to other public bodies such as boards of supervisors and
school boards in addition to municipal corporations. See
Board of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d
453, 455-56 (1975) (boards of supervisors); Kellam v. School
Board, 202 Va. 252, 254, 117 S.E.2d 96, 98 (1960) (school
boards). Therefore, the holding in Cedar Knoll and Lake
George is that neither Dillon’s Rule nor its corollary, that
is the extension to other public bodies, are applied to boards
of zoning appeals and such boards are limited to powers
expressly granted.
In summary, the principle established in Cedar Knoll and
Lake George, that boards of zoning appeals have only those
powers expressly granted, is dispositive in this case. As the
BZA concedes, the Virginia Code contains no express grant of
authority allowing the BZA to institute litigation on its own
behalf. Accordingly, we will affirm the judgment of the
circuit court.
Affirmed.
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