Present: All the Justices
JOHN J. CAPELLE, ET AL.
v. Record No. 040569 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2005
ORANGE COUNTY, ET AL.
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
In this appeal, we consider whether the circuit court erred
in holding that a zoning ordinance permitted construction of an
access road to transport mined materials across land zoned for
residential use.
The land in question is part of a 139-acre lot (the
property) located near Barboursville in Orange County. A large
portion of the property is zoned for agricultural use and a
smaller part is zoned for limited residential use. On the part
of the property zoned for agricultural use, a mining operation
is permitted by special use permit.
The residential use portion of the property is situated
between the agricultural use portion and Route 738, a public
highway. The complainants are Orange County residents (the
landowners) who own adjoining land or nearby properties.
Several of the landowners live in the same limited residential
zoning district that includes a portion of the property.
Defendant General Shale Brick, Inc. (General Shale) owns a
brick manufacturing plant near the property and contracted to
purchase the property to obtain mining materials for its brick
production. In December 2001, General Shale, with the property
owners’ permission, applied for a special use permit to perform
mining activities on the part of the property zoned for
agricultural use. Although the special use permit request
applied only to the part of the property located in the
agricultural zoning district, the “operation plan narrative”
that General Shale submitted with its application included a
proposal to construct an access road across the portion of the
property zoned for limited residential use to transport raw
materials from the mining site to Route 738.
After conducting public hearings, the Orange County
Planning Commission forwarded General Shale’s application for a
special use permit to the Board of Supervisors of Orange County
(the Board) without recommendation. The Board approved the
application with certain conditions. General Shale then
purchased the property to engage in the mining activities
described in the special use permit.
The landowners filed an amended bill of complaint in the
circuit court against General Shale and Orange County alleging
that the special use permit violated both the Orange County Code
(the County Code) and the Code of Virginia, and that the Board’s
approval of the special use permit was arbitrary and capricious,
and was unreasonable. The landowners sought a declaratory
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judgment that the Board’s decision was illegal, and requested an
injunction to prevent the Board from issuing the special use
permit.
After hearing argument on the parties’ cross-motions for
summary judgment, the circuit court denied the motions. The
court held that the road was permitted as an accessory use in
the limited residential district incident to the special use
permit for mining in the agricultural district, because all the
uses occurred on the same “lot.” However, the court concluded
that a trial was necessary to resolve the issue whether the
process of transporting mined materials over an access road was
part of the mining activity itself or was an accessory use to
the mining activity.
At trial, each defendant made a motion to strike the
evidence at the conclusion of the landowners’ case. The circuit
court granted the defendants’ motions, holding that the
landowners had failed to present sufficient evidence to prove
their allegations that General Shale’s intended use of the
access road was a mining activity in itself, and that the
Board’s decision to issue the special use permit was
unreasonable. The landowners appeal from the circuit court
judgment.
The primary issue in this appeal involves several sections
of the County Code, which are part of the County’s zoning
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ordinance. County Code § 70-277 states that “[a]ny use not
expressly permitted or permitted by special use permit in a
specific district is prohibited.” County Code § 70-302, which
applies to land zoned for agricultural use, permits as a matter
of right seven listed uses “and any accessory use that is
customarily incidental to such uses.” County Code § 70-303,
which also applies to land zoned for agricultural use, allows
the operation of a “[m]ine or quarry” by special use permit.
In limited residential zoning districts, the County Code
permits as a matter of right five specified uses and “any
customarily incidental accessory use.” County Code § 70-332.
“Accessory use,” a term applicable to both agricultural and
limited residential districts, is defined as “a secondary and
subordinate use or structure customarily incidental to, and
located upon the same lot occupied by, the main use or
structure.” County Code § 70-1. A “lot” is defined as “a
parcel of land having fixed boundaries, recorded by the clerk of
the circuit court as an individual unit of real estate for the
purpose of ownership, conveyance or taxation.” Id.
The landowners argue that the circuit court erred in
holding that the zoning ordinance provisions allow, as an
accessory use to mining conducted in an agricultural district,
the extension of an access road into a limited residential
district. The landowners assert that zoning district
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boundaries, rather than lot lines, dictate which uses are
permissible on each portion of the property. Thus, the
landowners argue that even if the transportation of mined
materials is considered an “accessory use” to the mining
operation, such accessory use is not allowed on the portion of
the property zoned for limited residential use.
In response, the defendants argue that the circuit court
properly applied the plain language of the County Code. The
defendants first rely on County Code § 70-332, and its language
permitting “any customarily incidental accessory use” in a
limited residential zoning district. The defendants also rely
on the County Code definition of “accessory use,” which defines
the term in relation to the same lot as the main use. County
Code § 70-1. Thus, the defendants contend that General Shale’s
proposed access road crossing the limited residential zoning
district is permitted as an accessory use to the mining use
under the terms of County Code § 70-332 because the main use,
the mining operation, is conducted on the same lot.
The defendants further assert that it would be absurd to
prohibit from limited residential districts those accessory uses
that are incidental to agricultural uses on the same lot. For
example, the defendants contend that under the landowners’
interpretation of the zoning provisions, a cattle farmer could
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not transport cattle to market over a section of his farm zoned
for limited residential use.
In considering the parties’ arguments, we first state
certain established principles that govern the construction of a
zoning ordinance. We employ the plain and natural meaning of
the words contained in the ordinance. Donovan v. Board of
Zoning Appeals of Rockingham Co., 251 Va. 271, 274, 467 S.E.2d
808, 810 (1996); McClung v. County of Henrico, 200 Va. 870, 875,
108 S.E.2d 513, 516 (1959). Although we give consideration to
the purpose and intent of the ordinance, we are not permitted to
extend the ordinance provisions by interpretation or
construction beyond such intent and purpose. Donovan, 251 Va.
at 274, 467 S.E.2d at 810; Gough v. Shaner, 197 Va. 572, 575, 90
S.E.2d 171, 174 (1955).
The issue in this appeal requires us to harmonize certain
County Code provisions that arguably are facially conflicting
when applied to the facts of this case.∗ When one County Code
provision addresses a subject in a general way and another deals
with a part of the same subject in a more specific manner, the
two provisions should be harmonized, if possible, and where they
conflict, the more specific provision prevails. Frederick Co.
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School Board v. Hannah, 267 Va. 231, 236, 590 S.E.2d 567, 569
(2004); Halifax Corp. v. First Union National Bank, 262 Va. 91,
102, 546 S.E.2d 696, 704 (2001); County of Fairfax v. Century
Concrete Servs., 254 Va. 423, 427, 492 S.E.2d 648, 650 (1997);
Virginia National Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d
867, 870 (1979).
In this case, the more general provision addressing
accessory uses appears in the definition section of the County
Code that pertains to zoning. As indicated above, that
provision defines “accessory use” as “a secondary and
subordinate use or structure customarily incidental to, and
located upon the same lot occupied by, the main use or
structure.” County Code § 70-1. This definition section,
however, also contains a limiting provision stating that the
defined words and phrases “shall have the meanings ascribed to
them in this section, except where the context clearly indicates
a different meaning.” Id.
In conjunction with those provisions, we also consider the
more specific County Code provision that employs the term
“accessory use” in the express context of limited residential
∗
Because the landowners did not assign error to the circuit
court’s ruling that the hauling of mined material is an
accessory use to the principal activity of mining, and does not
constitute mining itself, we will assume, without deciding, that
such ruling was correct for purposes of our analysis.
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zoning districts. In that provision, County Code § 70-332,
permitted uses are defined as follows:
In the limited residential district, land may be
used for the following uses, and any customarily
incidental accessory use, including home occupations:
(1) Single-family dwelling.
(2) Agriculture, except keeping of any animals other
than those customarily kept as household pets.
(3) Place of worship.
(4) Public use such as school, park, library, fire
and rescue station, public utility, or
maintenance facility.
(5) Sign subject to [certain other sections].
When we consider the term “accessory use” in the context of
this disputed provision, we conclude that the term refers to
uses customarily incidental to the listed permitted uses in
limited residential zoning districts. The very language of the
provision signals this construction, because the phrase “and any
customarily incidental accessory use” immediately follows,
without qualification or distinction, language referring only to
permitted uses in limited residential zoning districts. Thus,
we conclude that this phrase, and the County Code section in
which the phrase appears, deals exclusively with permitted uses
in a limited residential district. See County Code § 70-332.
The defendants' contrary construction is untenable because
it would allow in a limited residential district any accessory
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use to a main use located on a differently-zoned part of the
same lot, irrespective of the nature and intensity of that main
use. Thus, under the defendants’ construction of this
provision, a solid waste weighing station, as a secondary
structure customarily incidental to the operation of a sanitary
landfill, and an access road to the landfill site, could both be
located on a lot in a limited residential zoning district,
provided that the landfill itself was operated by special use
permit on the portion of the same lot zoned for agricultural
use. Plainly, the drafters of the County Code did not intend
such a result, as reflected by their provision that the “limited
residential district . . . protects [low-density residential]
areas from the traffic, noise and other effects of [more
intensive uses] and avoids conflicts with agricultural uses.”
County Code § 70-331.
Our conclusion is further reinforced by County Code § 70-
277, which states that “[a]ny use not expressly permitted or
permitted by special use permit in a specific district is
prohibited.” Here, a mining operation is not an expressly
permitted use in a limited residential zoning district, as
evidenced by County Code § 70-332 set forth above, and is not
allowed by special use permit in a limited residential zoning
district. The County Code restricts uses permitted by special
use permit in a limited residential zoning district to:
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(1) Elder care center, child day care center, or
nursery school.
(2) Keeping of animals other than those customarily
kept as household pets.
(3) Office of less than 4,000 square feet gross floor
area, including professional or contracting
office.
(4) Private cultural, recreational or institutional
use.
County Code § 70-333. Therefore, because a mining operation is
not a permitted use, or a use allowed by special use permit in a
limited residential zoning district, the access road to the
mining operation, which is an accessory use to the main use,
also is prohibited in a limited residential zoning district.
We find no merit in the defendants’ argument that because
the County Code specifically restricts accessory uses in
agricultural districts to “such uses” permitted in those
districts, but employs the phrase “any customarily incidental
accessory use” when referring to accessory uses in limited
residential districts, the proposed access road is allowed as an
accessory use in a limited residential district. The
defendants’ argument violates a basic rule of statutory
construction, namely, that in construing legislative enactments
we are not permitted to isolate single phrases but must consider
them in the context in which they are found. See Herndon v. St.
Mary’s Hosp., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003);
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Shelor Motor Co. v. Miller, 261 Va. 473, 479, 544 S.E.2d 345,
348 (2001); Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494,
496 (2001).
The term “such uses” appears in the provision dealing only
with permitted uses in agricultural districts, County Code § 70-
302, which does not include mining operations like the one
proposed by General Shale and, therefore, the term is irrelevant
to our analysis. Further, as we have already observed, the term
“any customarily incidental accessory use” appears in the County
Code provision dealing only with permitted uses in limited
residential districts. County Code § 70-332. Therefore, when
considered in the context of the County Code sections in which
they appear, neither term identified by the defendants supports
their position under the facts before us.
The defendants correctly note, however, that this
construction of the various County Code provisions limits the
agricultural uses that may coincide with limited residential
uses on the same lot, when road access to the agricultural
portion of the property must pass through the limited
residential part of the property. Nevertheless, this
observation cannot affect our analysis, which is restricted by
the language of the zoning provisions themselves. The choices
that must be made in drafting local zoning ordinances are
subjects for legislative consideration, and are not subjects for
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action by the courts. Accordingly, we conclude that the circuit
court erred in holding that the County Code permitted the
proposed access road as an accessory use in the limited
residential district incident to the special use permit for
mining in the agricultural district.
For these reasons, we will reverse the circuit court’s
judgment regarding the proposed access road, affirm the
remainder of the judgment that is not challenged in this appeal,
and enter final judgment.
Affirmed in part,
reversed in part,
and final judgment.
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