BOARD OF SUP. v. Town of Purcellville

Present: Hassell, C.J., Keenan, Koontz, Lemons, and Goodwyn,
JJ., and Carrico and Russell, S.JJ.

BOARD OF SUPERVISORS
OF LOUDOUN COUNTY, ET AL.

v. Record No. 071424 OPINION BY JUSTICE DONALD W. LEMONS
September 12, 2008
TOWN OF PURCELLVILLE

COUNTY OF LOUDOUN

v. Record No. 071425

TOWN OF PURCELLVILLE

BOARD OF SUPERVISORS
OF LOUDOUN COUNTY, ET AL.

v. Record No. 071426

TOWN OF PURCELLVILLE

TOWN OF PURCELLVILLE

v. Record No. 071505

BOARD OF SUPERVISORS
OF LOUDOUN COUNTY, ET AL.

MARTHA MASON SEMMES,
DIRECTOR OF PLANNING
AND ZONING FOR THE
TOWN OF PURCELLVILLE

v. Record No. 071506

TOWN OF PURCELLVILLE
BOARD OF ZONING APPEALS, ET AL.

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
 In these consolidated appeals 1 we consider various issues

involving a dispute between the Town of Purcellville (“Town”)

and Loudoun County (“County”) regarding the interpretation of

an annexation agreement dated November 16, 1994 (the

“Annexation Agreement”) and a joint comprehensive plan known

as the “Purcellville Urban Growth Area Management Plan” (the

“PUGAMP”).

I. FACTS AND PROCEEDINGS

In 1994, the Town and the County entered into an

Annexation Agreement defining the Town’s future rights in the

3,100-acre “Urban Growth Area” (“UGA”) 2 surrounding the Town’s

corporate limits. Under the Annexation Agreement, the Town

received the right to annex areas within the UGA in exchange

for relinquishing its right to seek city status. Although

both the Town and the County had previously adopted

comprehensive plans and zoning ordinances governing land use

within their respective jurisdictions, the Annexation

Agreement also provided for the development of a joint

comprehensive plan for the UGA. The plan would address, among

1
These five consolidated appeals are from two related
judgments of the Circuit Court of Loudoun County. The first
rendered a declaratory judgment; the second involved appeals
from the County Board of Zoning Appeals and the Town Board of
Zoning Appeals. In this opinion, “BZA” will be used for
convenience in referring to the Boards.
2
The UGA is also referred to as the Joint Land Management
Area or JLMA.

2
other things, proffer guidelines and allocations,

transportation networks, schools and other public facilities,

land uses, density, environmental policies, and phasing. The

County and the Town agreed that once a joint comprehensive

plan was adopted, development within the UGA would “be in

conformance with the Plan.”

Thereafter, a joint comprehensive plan committee

comprised of Town and County representatives drafted a plan.

After formal review by the Town and the County Planning

Commissions and a revision by Town and County Planning

Commissioners, both Planning Commissions formally certified

the final draft. This final draft, known as the PUGAMP, was

separately adopted by the Town Council and the County Board of

Supervisors in 1995 and was implemented as an element of both

the Town’s and the County’s respective comprehensive plans.

Prior to implementation of the PUGAMP, the Town’s

comprehensive plan did not address land outside its corporate

limits. The PUGAMP, however, expanded upon the Town’s

Comprehensive Plan by accommodating future development in the

UGA. Although the County’s previously adopted General Plan

provided guidelines for land use in the UGA, these policies

were superseded by the policies included in the PUGAMP. The

County’s Revised General Plan reiterates that development

within the UGA will comply with the PUGAMP and the County will

3
work with Town officials on annexation, development, and other

issues within the UGA.

Once “a local planning commission recommends a

comprehensive plan” and it is “approved and adopted by the

governing body,” the plan controls “the general or approximate

location, character and extent of each feature shown on the

plan.” Code § 15.2-2232(A). If a proposed development is not

already a feature shown on the plan, then the proposal must be

“submitted to and approved by the commission as being

substantially in accord with the adopted comprehensive plan.”

Id. Both the Town and the County refer to the approval of a

proposed development not shown on their comprehensive plans as

a “commission permit,” and both localities have established

within their respective zoning ordinances a commission permit

procedure consistent with the language of Code § 15.2-2232.

The PUGAMP’s “Existing and Proposed School Locations” map

identifies the “preferred location” for four new schools

within the UGA: an elementary school designated by an “E”

located southeast of the Town, another elementary school

designated by an “E” located northwest of the Town, a middle

school designated by an “M” located north of the Town, and a

high school designated by an “H” located northeast of the

Town. Although subdivisions were subsequently developed in

the areas designated for the proposed middle school and the

4
proposed high school, the need for new school sites remained.

Partly to address this need, in 2000 the County purchased a

230-acre tract of land lying northwest of the Town known as

Fields Farm. Excepting 2.6 acres, Fields Farm is located

entirely within the UGA. An elementary school was constructed

on this property in the area previously designated for such

use by the PUGAMP.

A. The Declaratory Judgment Action

On May 15, 2006, the County School Board requested a

“pre-application conference” with the County Planning

Department to discuss the construction of a high school (“HS-

3”) at Fields Farm. Among other things, the School Board

sought to confirm that a commission permit was not needed

prior to HS-3’s development. At the pre-application

conference, held on May 24, 2006, the County Planning

Department indicated that no commission permit was necessary

for the Fields Farm proposal. However, this matter was deemed

an “open issue to follow up on,” because the Town contended

that a commission permit was required. On June 1, 2006, the

County Board of Supervisors met with the School Board to

discuss HS-3. At the meeting, Julie Pastor (“Pastor”), the

County’s Planning Director, stated that a commission permit

was not required for the proposed high school, subject to a

5
determination by the County Zoning Administrator. 3 On June 19,

2006, the Town appealed the County’s determination that no

commission permits were necessary for HS-3’s development to

the County BZA. On the following day, the Board of

Supervisors authorized the County to seek a special use

exception for construction of HS-3 at Fields Farm.

On June 21, 2006, the Town filed a Complaint and

Application for Declaratory and Temporary Injunctive Relief in

the Circuit Court of Loudoun County “as a result of the

County’s ultra vires and illegal action.” The Town alleged

that “the County [had] completely ignored the Town’s rights to

be involved with, review and approve new development in the

UGA as outlined by the PUGAMP, the Annexation Agreement, and

Code §§ 15.2-2233 and –2232,” and further, that “the County’s

continuation of the land development process violate[d] the

procedural requirements of the . . . Annexation Agreement and

the [PUGAMP as well as] the statutory stay of action imposed

as a result of” the Town’s June 19 appeal to the County BZA.

3
In a March 8, 1999 memorandum, the County Zoning
Administrator, Melinda Artman, designated the Chief of
Comprehensive Planning as her agent in the determination of
whether a use requires a Commission Permit. Artman reiterated
her designation of authority in this respect at a hearing
before the County BZA held on September 28, 2006, stating, “I
delegated my authority for determining whether a commission
permit is required to the . . . Chief of Comprehensive
Planning,” whom she also referred to as “the Director of
Planning.”

6
The Town sought a declaration that “the Town’s appeal was

properly filed and . . . pending before the [County] BZA;”

that the County’s “participation . . . in the [s]pecial

[e]xception process and authorization to proceed with the

. . . development” of HS-3 at Fields Farm was “in furtherance

of the matters appealed from by the Town” and “violate[d] the

stay imposed . . . as a result of the Town’s [a]ppeal;” and

that no other proceedings related to HS-3 take place until the

Town’s appeal concluded. The Town also requested “such other

and further relief as may be required to ensure the County’s

strict compliance with the governing law.”

On the following day, Melinda Artman (“Artman”), the

County Zoning Administrator, notified the Town by letter that

its June 19 appeal to the County BZA was not accepted because

the appeal was premature. Artman reasoned that the record of

the pre-application conference specifically provided that no

matters discussed would be binding on either the applicant or

the County, and that no determination was made with regard to

the commission permit by anyone acting on Artman’s behalf at

the pre-application conference. Artman stated, however, that

based upon the pre-application conference she had been asked

to render a determination on whether a commission permit was

required, and a copy of her determination was enclosed. In

7
her letter, Artman communicated her decision that no

commission permit was necessary for the construction of HS-3.

The County subsequently filed a demurrer and an answer

denying the merits of the Town’s claims. The County filed a

plea in bar and a motion to dismiss thereafter, asserting the

circuit court lacked jurisdiction to consider the Town’s

claims. The circuit court held a hearing on the matter on

March 8, 2007, wherein the County contended that the case was

moot because the Town’s complaint sought relief specifically

related to its June 19 appeal to the County BZA, which had

been dismissed as premature, and further, that a declaratory

judgment was not “an appropriate method of seeking relief.”

The Town responded that the claim was not moot because

the fundamental issue, based on both the May 24 pre-

application conference and on Pastor’s June 1 statement to the

Board of Supervisors, concerned the County’s ability to

proceed with HS-3’s construction in disregard of the Town’s

claim that it had the authority to review any proposed

development within the UGA under the PUGAMP, the Annexation

Agreement, and the Code.

The circuit court refused to dismiss the case, stating,

“first, that the public interest exception would apply,” and

second, that the Town’s request for “such other and further

relief as may be required to ensure the County’s strict

8
compliance with the governing law” was “sufficient when read

in context with all the other remaining allegations in the

pleading to put the case before the [c]ourt properly for

declaratory judgment . . . with respect to the issuance of [a]

commission permit.”

On March 13, 2007, the circuit court rendered its opinion

on the declaratory judgment. The circuit court ruled that the

Annexation Agreement and the PUGAMP created a “joint

comprehensive plan” entered into by the County and the Town

pursuant to Code § 15.2-2231, and that through this agreement

the County had “consented to the extension of the Town’s

comprehensive planning authority into the [UGA].” Continuing,

the circuit court determined that it “was unnecessary for the

parties to address the commission permit review process . . .

because the right to review was inherent in the right to

participate in the planning process.” As a result, the

circuit court declared that “the Town and [the] County have

joint and concurrent authority to review and approve the

location of public facilities within the [UGA]” under Code

§ 15.2-2232. The circuit court entered a final order on April

18, 2007, wherein it incorporated its March 13 letter opinion

and further ruled that “the County’s authority to undertake

commission permit reviews for public facilities within the

9
[UGA] ceases when a property is annexed into the corporate

limits of the Town.”

B. The BZA Appeals

While the Town’s declaratory judgment action was pending,

the County BZA and the Town BZA rendered three related

decisions 4 concerning authority over new development within the

UGA. These decisions were appealed to the Circuit Court of

Loudoun County, which rendered a single opinion on the matters

within one week of the declaratory judgment.

1. Semmes’ Appeal from the Town BZA

On May 24, 2006, Martha Semmes (“Semmes”), the Town’s

Director of Planning and Zoning, informed the County that

pursuant to the PUGAMP, both localities would have to apply

for a commission permit for HS-3 because it was not a “feature

shown” on the plan. The School Board and the Board of

Supervisors subsequently appealed Semmes’ determinations to

the Town BZA. Following a hearing, the Town BZA determined

that it did not have jurisdiction to consider an appeal

arising from matters in controversy outside of the Town’s

corporate limits.

Semmes filed a petition for a writ of certiorari in the

circuit court pursuant to Code § 15.2-2314, seeking review of

4
One decision involved the consolidation of two matters
making a total of four separate BZA cases.

10
the Town BZA’s decision. Specifically, Semmes contended that

the PUGAMP had been implemented as part of the Town’s

comprehensive plan and, pursuant to Code § 15.2-2232 as

incorporated into the Town’s Zoning Ordinance, she had the

authority as the Town Zoning Administrator to determine

“whether a proposed public use [within the UGA] is a feature

shown on the adopted comprehensive plan.” Semmes asserted

that the Town Zoning Ordinance gives the Town BZA the

authority to decide appeals “where an error is alleged in any

. . . determination made by an administrative official in the

administration or enforcement of [the Town Zoning] Ordinance,”

and therefore, the Town BZA erred in determining that it

lacked jurisdiction to hear the appeal.

2. The Town’s First Appeal from the County BZA

Artman’s June 22, 2006 letter denying the Town’s June 19

appeal to the County BZA also contained the following

determinations:

1. Development of Fields Farm is exclusively governed
by the Loudoun County Zoning Ordinance and only the
County Zoning Administrator may make binding
determinations regarding the applicable zoning
regulations.
2. No Town official “is authorized to make any . . .
determination . . . concerning property in the
unincorporated portion of the County,
[s]pecifically, no Town official has authority to
make determinations regarding [c]ommission [p]ermit
requirements incorporated as part of the [Loudoun
County Zoning Ordinance].

11
 3. Even where a commission permit may be required for a
school facility within the UGA, no commission permit
is required from the Town under the Loudoun County
Zoning Ordinance.
4. HS-3’s development does not require a commission
permit in any event because the location of a public
high school at Fields Farm is a feature shown on the
PUGAMP.

The Town appealed these determinations to the County BZA.

The County BZA held a public hearing on the matter, but

limited its review of the Town’s arguments to the extent they

related to the Loudoun County Zoning Ordinance, determining

that its authority was “restricted to . . . the interpretation

of zoning.” The County BZA subsequently denied the Town’s

appeal and upheld Artman’s June 22 determinations.

The Town filed a petition for a writ of certiorari in the

circuit court pursuant to Code § 15.2-2314, seeking review of

the County BZA’s decision. Specifically, the Town contended

that the County BZA incorrectly concluded that only the County

Zoning Administrator and the Loudoun County Zoning Ordinance

control determinations regarding the issuance of commission

permits for public uses in the UGA; that the PUGAMP requires

the Town engage in consistency determinations of proposed

public uses in the UGA; that HS-3 is not a feature shown on

the PUGAMP; and that, consequently, “the commission permit

process mandated by Code § 15.2-2232 and the Town and County

Zoning Ordinances must be followed.” The Board of Supervisors

12
and the School Board filed an answer as intervening

defendants, asserting the Town did not have the authority to

make decisions concerning new development within the UGA.

3. The Town’s Second Appeal from the County BZA

On June 23, 2006, Semmes sent a letter to the School

Board regarding the proposed construction of an elementary

school within the UGA. Semmes stated that both the County and

the Town Planning Commissions would have to approve the site

by commission permit before development could proceed. Artman

responded on June 30, 2006 by letter, in which she stated that

no Town official is authorized to make such determinations.

Artman reasoned that, as a result, Semmes’ June 23 letter was

“null and void ab initio.”

The Town appealed Artman’s June 30 determinations to the

County BZA. The County BZA held a public hearing on the

matter, wherein it again indicated that it could “simply make

determinations with regard to County zoning.” Whether the

Town could engage in the review of new development within the

UGA under the PUGAMP, which “is not a zoning instrument,” was

deemed outside of the County BZA’s jurisdiction.

Consequently, the County BZA denied the Town’s appeal and

upheld Artman’s determinations.

The Town filed a petition for a writ of certiorari in the

circuit court pursuant to Code § 15.2-2314, seeking review of

13
the County BZA’s decision. Specifically, the Town contended

that the PUGAMP is the relevant comprehensive plan governing

proposed uses within the UGA; that the commission permit

process contained in the Town Zoning Ordinance required the

Town to review new development within the UGA; that Code

§ 15.2-2286(4), as well as the Town Zoning Ordinance, specify

that a locality’s zoning administrator shall have all

necessary authority on behalf of the Town; and that,

consequently, whether the elementary school “is a feature

shown on the PUGAMP was a necessary preliminary determination

properly made by [Semmes] on behalf of the Town in the

administration and enforcement of . . . the Town Zoning

Ordinance, as well as in the implementation of the

requirements of Code § 15.2-2232.” The Board of Supervisors

and the School Board filed an answer as intervening

defendants, asserting the Town did not have the authority to

make decisions concerning new development within the UGA.

4. The Circuit Court’s Decision regarding BZA Appeals

The three BZA appeals were consolidated for one hearing

before the circuit court, and on March 19, 2007, the circuit

court rendered its decision by a single letter opinion.

First, with respect to Semmes’ appeal, the circuit court found

that no authority exists within “the Annexation Agreement or

state statute” pursuant to which the Town BZA could render

14
decisions affecting property located outside the Town’s

corporate limits. Second, the circuit court affirmed the

County BZA’s decision upholding Artman’s determination that

Semmes lacked authority “to make commission permit

determinations respecting properties outside the corporate

limits of the Town” because “no such power exists.” Third,

the circuit court held that the County BZA’s decision that

commission permit review was not required before proceeding

with HS-3’s development was “not erroneous” because it is

“indisputable” that HS-3 is a feature shown on the PUGAMP.

Fourth, the circuit court reversed the County BZA’s decision

upholding Artman’s determinations “respecting the right of the

Town to participate in the compliance review process with the

County outside the corporate limits of the Town but within

[the] PUGAMP” because the decision was inconsistent with the

circuit court’s March 13 opinion declaring that the Town and

the County have joint and concurrent authority to review and

approve the location of public facilities within the UGA. The

circuit court affirmed the decision only “[t]o the extent that

the [County BZA] rejected any claim by the Town that it might

exercise zoning jurisdiction within the PUGAMP but outside the

limits of the Town.” The circuit court entered final orders

on the three appeals on April 18, 2007, for the reasons stated

in its March 13 and March 19 letter opinions.

15
 II. ANALYSIS

Both the County and the Town present several assignments

of error that challenge the circuit court’s interpretation of

the PUGAMP and its subsequent rulings. Specifically, the

County argues the circuit court erred in declaring that the

Town has joint and concurrent authority to review and approve

the location of new development within the UGA, and in holding

that the County’s authority to engage in the review process

ends once unincorporated property is annexed by the Town. The

County also assigns error to the circuit court’s refusal to

dismiss the Town’s declaratory judgment action for lack of

jurisdiction.

The Town contends that the circuit court erred in

determining in the BZA appeals that neither the Town nor

Semmes have the authority to engage in consistency review

within the unincorporated portion of the County, and that HS-3

is a feature shown on the PUGAMP. Since the denial of the

County’s plea in bar and motion to dismiss present threshold

issues, we will consider them first.

A. Plea in Bar and Motion to Dismiss

1. Mootness

According to the County, a fair reading of the Town’s

initial complaint reveals that the entire case was premised

upon an appeal to the BZA that was premature. Therefore, the

16
County maintains, the matter before the BZA was moot and there

was no jurisdictional basis upon which the trial court could

entertain the Town’s requested declaratory judgment and

temporary injunctive relief. Additionally, the County asserts

that the Town’s general prayer of “such other further relief

as may be required” was an insufficient basis for the circuit

court’s exercise of jurisdiction notwithstanding the lack of

an underlying BZA appeal.

In response, the Town argues the case was not moot

because the denial of the Town’s initial BZA appeal did not

resolve the underlying issues in the case. “The intent of the

[Declaratory Judgment Act] is to have courts render

declaratory judgments which may guide parties in their future

conduct in relation to each other, thereby relieving them from

the risk of taking undirected action incident to their rights,

which action, without direction, would jeopardize their

interests.” Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414,

421, 177 S.E.2d 519, 524 (1970). The Act “is to be liberally

interpreted and administered with a view to making the courts

more serviceable to the people,” Code § 8.01-191, but courts

may only issue declaratory judgments “in cases of actual

controversy when there is antagonistic assertion and denial of

right.” Treacy v. Smithfield Foods, Inc., 256 Va. 97, 103,

500 S.E.2d 503, 506 (1998) (quotation marks and citations

17
omitted). “Thus, the Declaratory Judgment Act does not give

trial courts the authority to render advisory opinions, decide

moot questions, or answer inquiries that are merely

speculative.” Id. at 104, 500 S.E.2d at 506 (citations

omitted).

By its terms, the PUGAMP is a comprehensive plan adopted

by the County and the Town governing development within the

UGA. However, the County’s Planning Department and Planning

Director maintained that HS-3’s development would not require

Town approval, and the Board of Supervisors subsequently

authorized the County to seek a special use exception so that

HS-3’s development could proceed. Conversely, the Town

consistently asserted that it had an equal right to determine

whether the proposed school site was consistent with the

PUGAMP.

Clearly, a justiciable controversy existed between the

County and the Town as to their rights under the terms of

their joint agreement. See Criterion Ins. Co. v. Grange Mut.

Cas. Co., 210 Va. 446, 449, 171 S.E.2d 669, 671 (1970) (“When

a justiciable controversy exists between two insurance

companies as to their obligations under the terms of their

respective policies, a declaratory judgment proceeding may be

maintained by one of the companies against the other”). The

fact that the County BZA denied the Town’s initial appeal as

18
premature does not indicate that an actual case or controversy

within the contemplation of the Declaratory Judgment Act did

not exist. See Tazewell Cty. Sch. Bd. v. Brown, 267 Va. 150,

157-58, 591 S.E.2d 671, 674 (2004) (neither reinstatement nor

resignation of school administrator mooted his claim of

unfounded information in his personnel file).

Furthermore, the Town alleged in plain and explicit

language that the County’s actions violated the Annexation

Agreement, the PUGAMP, the localities’ zoning ordinances, and

Code §§ 15.2-2223 and –2232, and the Town fully set forth its

supporting reasoning in its complaint. The Town’s request

that the County be “required to . . . comply with the

governing law” was therefore sufficient to allow the circuit

court to determine whether the County could proceed with HS-

3’s development within the UGA without the Town’s approval by

adjudicating the localities’ respective rights under the

PUGAMP.

2. Appropriateness of Declaratory Relief

The County also contends that a declaratory judgment was

not the “proper vehicle for providing relief” because “the

County had already acted and, therefore, the Town’s rights, if

any, had already accrued.” We disagree. The Town sought a

declaration of its rights under its written agreements with

the County and the dispute presented would not be resolved

19
upon a dispositive factual question. Therefore, declaratory

judgment was a proper vehicle for relief.

Although “this [C]ourt and lower courts have . . . given

a liberal interpretation to the Declaratory Judgment Act, they

have nevertheless recognized that the power to make a

declaratory judgment . . . will not as a rule [be] exercised

where some other mode of proceeding is provided.” Bishop, 211

Va. at 421, 177 S.E.2d at 524. “Where a declaratory judgment

as to a disputed fact would be determinative of issues, rather

than a construction of definite stated rights, status, and

other relations, commonly expressed in written instruments,

the case is not one for declaratory judgment.” Williams v.

Southern Bank of Norfolk, 203 Va. 657, 663, 125 S.E.2d 803,

807 (1962) (quoting 16 Am. Jur., Declaratory Judgments, § 20

at 294-95).

For example, in USAA Casualty Insurance Co. v. Randolph,

255 Va. 342, 344-45, 497 S.E.2d 744, 745 (1998), an employee

filed a declaratory judgment action to determine whether the

Virginia Workers’ Compensation Act would bar him from

instituting a tort action for injuries sustained while he was

at his place of employment. We held that declaratory judgment

was inappropriate “because the case [did] not involve a

determination of rights, but only involve[d] a disputed issue

to be determined in future litigation between the parties,

20
namely, whether [the employee’s] injuries arose out of and in

the course of his employment.” Id. at 347, 497 S.E.2d at 747.

Similarly, in Green v. Goodman-Gable-Gould Co., Inc., 268

Va. 102, 108, 597 S.E.2d 77, 81 (2004), Goodman-Gable-Gould

filed a declaratory judgment action to “determine whether it

had substantially performed its obligations under [its]

contract with [Green]” when Green requested Goodman-Gable-

Gould withdraw from adjusting Green’s fire loss claim. 268

Va. at 108, 597 S.E.2d at 81. We held declaratory relief was

inappropriate because Goodman-Gable-Gould’s “actual objective

in the . . . proceeding was a determination of that disputed

issue rather than an adjudication of the parties’ rights,” an

issue which “should have been litigated in the context of a

breach of contract claim.” Id.

In contrast, rather than a determination of a disputed

factual issue, the Town sought a declaration of its rights

under its written agreements with the County. Therefore, this

was “a classic case where declaratory judgment [was]

appropriate to ‘guide parties in their future conduct in

relation to each other.’ ” Reisen v. Aetna Life and Cas. Co.,

225 Va. 327, 335, 302 S.E.2d 529, 533 (1983) (quoting Bishop,

211 Va. at 421, 177 S.E.2d at 524). The trial court did not

err by deciding the question.

B. The Trial Court’s Judgment

21
The trial court held that:

Being a joint plan, both the County and
Town, are initiators of the Plan. The
Annexation Agreement provides that the planning
commissions of both jurisdictions would
participate in the review of the document
prepared by the unique Joint Comprehensive Plan
Committee provided for in the Agreement. It
was unnecessary for the parties to address the
commission permit review process in the
Annexation agreement or PUGAMP, because the
right to review was inherent in the right to
participate in the planning process.

For several reasons, we disagree.

In City of Richmond v. Board of Supervisors, 199 Va. 679,

684, 101 S.E.2d 641, 645 (1958), we stated the general

“Dillon’s rule” as follows:

It is a general and undisputed proposition
of law that a municipal corporation possesses
and can exercise the following powers and no
others: First, those granted in express words;
second, those necessarily or fairly implied in
or incidental to the powers expressly granted;
third, those essential to the declared objects
and purposes of the corporation, not simply
convenient but indispensable. Any fair,
reasonable doubt concerning the existence of
the power is resolved by the courts against the
corporation and the power is denied. Winchester
v. Redmond, 93 Va. 711; 25 S.E. 1001, 57 Am.
St. Rep. 822 [1896]; Wallace v. Richmond, 94
Va. 204, 26 S.E. 586, 36 L.R.A. 554 [1897];
Railway Co. v. Dameron, 95 Va. 545, 28 S.E. 951
[1898]; Duncan v. City of Lynchburg, 2 Va. Dec.
700, 34 S.E. 964, 48 L.R.A. 331 [1900].

However, we also stated the specific rule to be followed when

the question is narrowed to consider the scope of a municipal

corporation’s extraterritorial powers. “A municipal

22
corporation is a mere local agency of the State and has no

powers beyond the corporate limits except such as are clearly

and unmistakably delegated by the legislature.” Id. In this

instance, there is no clear and unmistakable delegation of

concurrent power of the Town to engage in zoning

determinations in the unincorporated portion of the County.

Section 15.2-2232 and any reviews provided therein pertain to

the planning function and not zoning.

Code § 15.2-2232(A) provides in part:

Whenever a local planning commission recommends
a comprehensive plan or part thereof for the
locality and such plan has been approved and
adopted by the governing body, it shall control
the general or approximate location, character
and extent of each feature shown on the plan.
Thereafter, unless a feature is already shown
on the adopted master plan or part thereof
. . . no . . . public building or public
structure . . . shall be constructed,
established or authorized, unless and until the
general location or approximate location,
character, and extent thereof has been
submitted to and approved by the commission as
being substantially in accord with the adopted
comprehensive plan or part thereof.

The “commission” referred to in Code § 15.2-2232 is the local

planning commission referenced in Code § 15.2-2223: “The

local planning commission shall prepare and recommend a

comprehensive plan for the physical development of the

territory within its jurisdiction.” (Emphasis added). While

the Town and the County jointly engage in planning, zoning

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determinations within the unincorporated territory of the UGA

remain under the exclusive authority of the County. The Town

may participate in the process; however, zoning authority is

left with the commission where the territory is located – in

this case, in the County.

The trial court also held that once previously

unincorporated territory in the UGA is annexed by the Town, it

is no longer subject to commission permit review by the

County. This partial holding by the trial court is correct

and recognizes the “mirror image” of the County’s zoning

authority for territory in its jurisdiction. Each governmental

entity retains zoning authority for territory in its

jurisdiction. If the land encompassed by the PUGAMP remains

in the County, it is the County that retains the power to

decide. If the land in the PUGAMP is annexed by the Town, it

is no longer in the County and it is the Town that has the

power to decide.

Accordingly, the trial court erred in holding that “the

right to review was inherent in the right to participate in

the planning process.” The planning process is distinct from

zoning determinations. Pursuant to Code § 15.2-2232 and -

2223, zoning authority remains exclusively with the commission

that has “the territory within its jurisdiction.”

C. The BZA Appeals

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 The various BZA cases took convoluted paths to the trial

court upon certiorari from decisions of the County BZA and the

Town BZA. The County asserts that the Town and the County

agreed that the appropriate standard of review by the trial

court is to uphold the BZA’s disposition unless it is “plainly

wrong or without evidence to support” the decision. The Town

disagrees. The record does reveal some discussion between

counsel regarding the appropriate standard of review upon

certiorari to the circuit court. Assuming without deciding

that the parties had an agreement regarding this matter, the

trial court utilized the standard of review contained in Code

§ 15.2-2314, giving deference to findings of fact incidental

to BZA review of decisions of the zoning administrator. Under

this standard, “the findings and conclusions of the [BZA] on

questions of fact shall be presumed to be correct. The

appealing party may rebut that presumption by proving by a

preponderance of the evidence . . . that the [BZA] erred in

its decision.” Code § 15.2-2314. Conclusions of law reached

by the BZA are not afforded the same presumption of

correctness. See id. (“The court shall hear any arguments on

questions of law de novo”). Because the trial court utilized

the statutory standard of review and the County does not

assign error to this determination, we will not utilize a

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different standard purported to have been agreed upon by the

litigants.

Both the Town and the County engaged in BZA review of

issues relating to the underlying controversy. The Town

Zoning Administrator determined that a commission permit must

be obtained from the Town Planning Commission prior to

locating HS-3 on the property in question because she

determined that this feature was not depicted on the PUGAMP.

The County appealed this determination to the Town BZA. The

Town BZA concluded that it had no authority to make a ruling

regarding whether the feature was on the PUGAMP, agreeing with

the County that because the property in question was beyond

Town corporate limits, the Zoning Administrator did not have

authority to make such a determination and consequently, the

Town BZA had no jurisdiction to review the matter.

On appeal, the trial court affirmed the Town BZA’s

decision that it did not have such authority. For the reasons

previously stated herein concerning the declaratory judgment

action, the trial court’s holding was correct. The Town does

not have extra-territorial jurisdiction concerning zoning

decisions in the unincorporated area of the County that

constitutes the UGA. Nothing in the Code, Annexation

Agreement or the PUGAMP provides such authority.

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 The County Zoning Administrator also considered whether a

commission permit was required to permit the construction of

HS-3. The County Zoning Administrator made the following

determinations:

1. Development of the property is exclusively governed
by the Loudoun County Zoning Ordinance and only the
County Zoning Administrator is authorized to make
binding determinations regarding the applicable
zoning regulations.
2. No official from the Town is entitled to make a
determination that commission permits are required
for the location of a high school on the property.
3. A high school for the property is a feature shown on
PUGAMP, the governing comprehensive plan.
4. Even if a commission permit is required under the
County Zoning Ordinance, no concurrence in that
determination is required from the Town Planning
Commission.

The Town appealed these determinations to the County BZA,

which upheld each of the Zoning Administrator’s decisions.

On appeal, the trial court affirmed the BZA’s

determination that the Zoning Administrator correctly

determined that HS-3 is a feature shown on the PUGAMP and the

trial court further held that no commission permit was

required for the development of HS-3. The trial court reversed

the remaining decisions of the County BZA declaring that those

decisions were inconsistent with the trial court’s ruling in

the declaratory judgment action.

Herein we have held that the trial court erred in its

judgment in the declaratory judgment action. Flowing from

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that holding, the trial court also erred in reversing the BZA

decisions 1, 2, and 4 above. As previously stated in the

portion of this opinion dealing with the declaratory judgment

action, only the County has zoning authority involving the

development of HS-3 on the subject property. The Town may

participate in the process, but the County has zoning

authority over the commission permit question.

With regard to the trial court’s ruling that HS-3 is a

feature shown on the PUGAMP and that no commission permit is

required for its development, we disagree. Code § 15.2-2223

states that a “comprehensive plan shall be general in nature,

in that it shall designate the general or approximate

location, character, and extent of each feature . . . shown on

the plan and shall indicate where existing lands or facilities

are proposed to be . . . changed in use.” Under Code § 15.2-

2232, unless already shown on the plan, a feature’s “general”

or “approximate location, character, and extent” must be

“submitted to and approved by the commission as being

substantially in accord with the adopted comprehensive plan”

before being constructed. The trial court determined that HS-

3 is a feature that is shown on the plan; consequently,

commission permit review is not required in order to proceed

with development.

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 Code § 15.2-2232 anticipates construction of features

that are not shown anywhere on the comprehensive plan, in this

case, the PUGAMP. Clearly, if a feature is not even

mentioned, a commission permit is required to determine

whether the proposal is “substantially in accord with the

adopted comprehensive plan.” However, the statute, standing

alone, does not anticipate a feature being mentioned but later

proposed to be constructed in a location significantly removed

from the planning site.

When engaged in statutory construction, we must harmonize

statutes as much as possible to give effect to all of their

provisions. LZM, Inc. v. Virginia Dept. of Taxation, 269 Va.

105, 111, 606 S.E.2d 797, 800 (2005). The determination

whether a feature is “already shown on the adopted master

plan” pursuant to Code § 15.2-2232 must be made in light of

the requirement that a “general or approximate location” of

the feature is required in Code § 15.2-2223. The location of

HS-3 on the PUGAMP is in the northeast corner of the UGA. The

County’s proposed location for building HS-3 is in the

northwest corner of the UGA. The UGA is approximately three

miles wide and the proposed location is two miles from the

location of the feature on the PUGAMP. Because the proposed

location is not in accordance with the “general or approximate

location” requirement for the plan, the proposed location of

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HS-3 amounts to the functional equivalent of no feature at

all. Under these circumstances, we hold that the trial court

erred in determining that the proposed construction of HS-3 is

a feature shown on the PUGAMP and the trial court further

erred in holding that no commission permit was required for

the development of HS-3.

III. CONCLUSION

The trial court did not err in holding that the

declaratory judgment action was properly before it and that

the matters in controversy were not moot. However, we hold

that the trial court erred in the declaratory judgment action

by holding that with respect to the implementation of the

PUGAMP, “the right to review was inherent in the right to

participate in the planning process.” For the reasons stated

herein, this error affected the trial court’s judgment in the

BZA appeals. Finally, the trial court erred in holding that

HS-3 is a feature shown on the PUGAMP and that no commission

permit is required for its development.

With regard to these consolidated appeals, we will affirm

in part and reverse in part as stated herein and remand these

matters for further proceedings consistent with this opinion.

Affirmed in part,
reversed in part,
and remanded.

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