Present: All the Justices
COUNTY OF CHESTERFIELD, ET AL.
OPINION BY
v. Record No. 010523 CHIEF JUSTICE HARRY L. CARRICO
March 1, 2002
WINDY HILL, LTD., ET AL.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Code § 4.1-128(A), part of the Alcoholic Beverage Control
Act, provides in pertinent part that "[n]o county, city, or town
shall . . . adopt any ordinance or resolution which regulates or
prohibits the manufacture, . . . drinking, use, . . . or
dispensing of alcoholic beverages in the Commonwealth." Code
§ 4.1-128(C) provides in pertinent part that "all local acts,
including charter provisions and ordinances of cities and towns,
inconsistent with any of the provisions of this title, are
repealed to the extent of such inconsistency."
In City of Norfolk v. Tiny House, Inc., 222 Va. 414, 281
S.E.2d 836 (1981), we held that the Alcoholic Beverage Control
Commission's 1 "exclusive authority to license and regulate the
sale and purchase of alcoholic beverages in Virginia does not
preclude a municipality from utilizing valid zoning ordinances
to regulate the location of an establishment selling such
1
At the time Tiny House was decided, the body regulating
alcoholic beverages in this Commonwealth was called the Virginia
Alcoholic Beverage Control Commission. In 1985, the General
Assembly changed "Commission" to "Board" in an enactment
alcoholic beverages." Id. at 423, 281 S.E.2d at 841. The
question in the present case is whether Tiny House controls
when, as here, the issuance by a county of a conditional use
permit for a particular activity on a parcel of land is made
subject to the condition that "[n]o alcoholic beverages shall be
permitted" on the property.
Seeking enforcement of this condition, the County of
Chesterfield and its Director of Planning, Thomas Jacobson
(collectively, the County), filed in the trial court a bill of
complaint for injunctive relief against E. M. Ciejek, Inc.
(Ciejek), owner of the property subject to the condition, and
Windy Hill, Ltd. (Windy Hill), the lessee of the property. The
trial court heard the case on cross-motions for summary judgment
filed by the County and Windy Hill and on a demurrer filed by
Ciejek.
Windy Hill's motion for summary judgment was based upon the
proposition that Condition No. 9 is a prohibition measure
designed to prohibit the use of alcohol contrary to Code § 4.1-
128(A), that the condition is inconsistent with state law
contrary to Code § 1.13-17, 2 and that the condition is therefore
void and repealed by Code § 4.1-128(C). These grounds form the
effective July 1, 1986. 1985 Va. Acts ch. 448. We will use
"Commission" when appropriate and "Board" when appropriate.
2
sole basis for Windy Hill's attack on the validity of Condition
No. 9.
The trial court denied the County's motion for summary
judgment but granted Windy Hill's motion and also sustained
Ciejek's demurrer. We awarded the County this appeal.
Because the case was decided on motions for summary
judgment and a demurrer, we will state the facts as alleged in
the County's bill of complaint and draw inferences therefrom in
the light most favorable to the County, the non-moving party,
unless the inferences are strained, forced, or contrary to
reason. Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91,
95, 546 S.E.2d 696, 699 (2001).
The property in question consists of a 176-acre parcel of
land located on Midlothian Turnpike in Chesterfield County. The
county zoning ordinance places the land in an agricultural
district in which certain uses, including "outdoor recreational
establishment[s]," are permitted only upon the issuance of a
conditional use permit.
In 1981, Ciejek applied to the Board of Supervisors of
Chesterfield County for a conditional use permit to operate a
sports complex, which qualified as an "outdoor recreational
establishment," on the 176-acre parcel. The filing of the
2
Code § 1.13-17 provides that local ordinances "must not be
inconsistent with the Constitution and laws of the United States
3
application "generated significant community opposition."
However, as a result of negotiations among the County's planning
staff, Ciejek, and area property owners, Ciejek "agreed to [ten]
conditions and restrictions upon the use of [its] property."
On November 25, 1981, the Board of Supervisors approved
Ciejek's request for a conditional use permit subject to the
conditions that had been agreed to. Included was Zoning
Condition No. 9, which provided that "[n]o alcoholic beverages
shall be permitted" on the property. Thereafter, the sports
complex was constructed and Windy Hill became its operator.
In 1990, Windy Hill filed a zoning application seeking an
amendment of the zoning conditions to permit the sale and
consumption of alcoholic beverages at the sports complex. On
January 23, 1991, the Board of Supervisors denied the
application. On two other occasions, once in 1992 and again in
1996, Windy Hill sought permission from the Board of Supervisors
to expand the conditional use permit to include additional
property adjacent to the sports complex. On both occasions, the
Board of Supervisors granted permission after Windy Hill agreed
that Zoning Condition No. 9 would remain in effect.
In June 1999, Windy Hill applied to the Virginia Alcoholic
Beverage Control Board (the ABC Board) for a license to sell and
serve beer at the sports complex. The County objected to the
or of this Commonwealth."
4
issuance of a license on the ground that the sale of alcohol at
the complex would violate the applicable zoning conditions. On
March 20, 2000, the ABC Board granted Windy Hill a beer on-
premises license. In its Final Decision and Order Granting
License, the ABC Board dismissed the County's objection and
stated as follows:
[W]hether the restriction against the sale of alcoholic
beverages included in the conditional use permit granted by
the County of Chesterfield for the applicant premises is
enforceable under the County's Zoning power is not within
the Board's jurisdiction and is properly the subject of
proceedings between the County and property owner in a
court of competent jurisdiction.
Windy Hill is currently selling beer on the premises pursuant to
the ABC license.
In sustaining Windy Hill's motion for summary judgment, the
trial court in a letter opinion found a conflict between
Condition No. 9 and the ABC Board's exclusive authority to
regulate the use of alcohol. The trial court said a conflict
existed because "there is nothing in [the conditional use]
permit that states that the prohibition of alcohol is for zoning
purposes or for the general health and safety of the community."
Without such a statement, the trial court opined, Condition No.
9 "directly conflicts with the powers granted to the ABC [Board]
and amounts to a prohibition measure" forbidden by Code § 4.1-
128(A) because it "effectively prohibits every conceivable use
of alcohol on the premises."
5
The County contends the trial court's requirement of a
statement of zoning purpose in a conditional use permit "is
erroneous because there is no such requirement imposed under
Virginia law." Windy Hill does not even mention such a
requirement, let alone defend it, and for good reason – the
trial court cited no authority for the requirement, and we have
found none.
Furthermore, there is inherent in every zoning ordinance
"the general purpose of promoting the health, safety or general
welfare of the public." Code § 15.2-2283. The zoning ordinance
of Chesterfield County in effect when the conditional use permit
was issued in 1981 echoed this general purpose, see former
Chesterfield County Code § 21-1, and the same is true of the
present zoning ordinance, see current Chesterfield County Code
§ 19-1. We hold that the lack of a statement of zoning purpose
in Condition No. 9 did not create a conflict between the
condition and the powers of the ABC Board.
Nor does Condition No. 9 otherwise conflict with the powers
granted the ABC Board. Condition No. 9 is comparable to the
zoning provisions at issue in Tiny House, supra. There, the
zoning ordinance of the City of Norfolk defined certain "adult
uses," which included establishments "for the sale of beer,
wine, and/or mixed beverages for on-premises consumption." 222
Va. at 426, 281 S.E.2d at 843. The ordinance noted the "serious
6
objectionable operational characteristics [inherent in adult
uses], particularly when several of them are concentrated . . .
or located in direct proximity to residential neighborhoods."
Id., 281 S.E.2d at 842-43. The ordinance required "use permits
for adult uses," id. at 425, 281 S.E.2d at 842, and provided
that "no such permit shall authorize such use or structure less
than 500 feet from any residential district boundary," id. at
426, 281 S.E.2d at 843, and that "no more than two such uses
shall be located within 1000 feet of each other," id. at 427,
281 S.E.2d at 843.
Tiny House applied for a use permit to sell beer for on-
premises consumption in a restaurant on commercially zoned
property located within 1000 feet of other adult uses. The City
Planning Commission recommended denial of the permit. While the
matter was pending before City Council, Tiny House withdrew its
application, sought and received a license from the ABC
Commission to serve beer for on-premises consumption, and began
selling beer. The City then sought to enjoin such sale. The
trial court refused injunctive relief, and the City of Norfolk
appealed.
On appeal, Tiny House argued that "even though the City's
Ordinance may be a legitimate exercise of its police power, the
City may not regulate the location and concentration of
establishments selling alcoholic beverages" because "the General
7
Assembly granted this exclusive authority to the ABC
Commission." 222 Va. at 421, 281 S.E.2d at 840. Tiny House
then argued that "when a city ordinance conflicts with a state
statute, the state statute will prevail." Id. Finally, Tiny
House argued that " 'a reading of the Virginia Beverage Control
Act in its entirety [demonstrates] that the state legislature
intended to control the whole of the law . . . relating to and
concerning alcoholic beverages.' " Id.
We responded as follows:
We agree that in conflicts between state law and
municipal law, state law must control. We reject Tiny
House's contention that the General Assembly, by enacting
the ABC Act, intended to prohibit local governments from
utilizing zoning as a means of controlling the location and
concentration of establishments selling alcoholic
beverages.
Id. Further, we stated as follows:
If this court adopted Tiny House's argument, we would
be granting the ABC Commission the exclusive right to
determine the location of establishments selling alcoholic
beverages. Counsel for Tiny House conceded that if the ABC
Act preempts local zoning ordinances regarding the location
and concentration of this type of establishment, then the
ABC Commission could grant a license for such an
establishment in a residential area and the local
government would be powerless to prevent it.
We find no manifest intention on the part of the
legislature to grant such sweeping and unbridled authority
to the ABC Commission. There is no language in the ABC Act
which takes from local governments the powers conferred
upon them by zoning statutes to regulate land use. The
General Assembly intended to grant the ABC Commission
exclusive authority to control the ". . . use . . . or
dispensing of alcoholic beverages in Virginia." [The
General Assembly] did not intend to usurp the police power
8
of local governments or to prevent them from achieving the
orderly use of land through zoning ordinances. When there
is no conflict between the terms of the ABC Act and those
of a municipal ordinance, the ordinance may stand. We hold
that the ABC Commission's exclusive authority to license
and regulate the sale and purchase of alcoholic beverages
in Virginia does not preclude a municipality from utilizing
valid zoning ordinances to regulate the location of an
establishment selling such alcoholic beverages.
222 Va. at 422-23, 281 S.E.2d at 841 (citations omitted).
Finally on the conflict point, we stated as follows: "We
find no conflict between any provision in the Acts of the
General Assembly regulating alcoholic beverages and the
Ordinance of the City of Norfolk enacted pursuant to Acts of the
General Assembly concerning municipal zoning." Id. at 424, 281
S.E.2d at 842. Likewise, we find no conflict here.
Windy Hill attempts to distinguish Tiny House on the ground
that, while the County defines the word "location" as meaning
" 'site specific,' " "what the Supreme Court meant by 'location'
[in Tiny House] is 'zoning district.' " This definition of
"location," Windy Hill submits, is derived from the powers
granted localities "to regulate the 'use of land' by dividing it
into various districts and then setting forth what types of
'land uses' can be done in each district."
Windy Hill admits that its definition of "location" also
"applies to conditional zoning cases," but it says "the
'conditions' must relate to 'land uses,' not 'alcohol uses.' "
Windy Hill maintains that this case is a prime example of the
9
necessity to define "location" the way Windy Hill defines it.
Windy Hill points out that "[o]f the ten conditions of the
ordinance [granting the conditional use permit], all but
Condition 9 legitimately relate to the 'use of land,' " and only
Condition No. 9 "attempts to usurp the power of the ABC
Commission by prohibiting the 'use of alcohol.' " Windy Hill
submits that "[t]he prohibition against alcohol in Condition 9
of the Ordinance is inconsistent with State law, and was
therefore repealed by Code Sec. 4.1-128C eo instanti upon its
enactment."
On the other hand, Windy Hill asserts, the Norfolk zoning
ordinance applied in Tiny House "is not a prohibition against
alcohol" but an "ordinance . . . designed to prevent 'red light
districts,' not by prohibiting them, or the alcohol they serve,
but by preventing their 'concentration' " rather than their
location. Windy Hill submits that the Norfolk ordinance twice
states in its preamble that "its purpose is to prevent the
'concentration' of such adult establishments" and that the "Tiny
House opinion refers to the 'clustering' of such uses." Thus,
Windy Hill concludes, Tiny House only stands for the proposition
that localities may prevent the concentration of adult uses in
zoning districts; it does not allow localities to "dictate that
an adult establishment serving alcohol cannot be located on any
specific piece of property."
10
We disagree with Windy Hill; we are of opinion that Tiny
House is indistinguishable. It is true that the Norfolk zoning
ordinance considered in Tiny House twice stated that its purpose
was to prevent the concentration of adult uses. It is also true
that in the Tiny House opinion we referred to the clustering of
adult uses. But that does not mean Tiny House is authority only
for a locality's power to prevent concentration and clustering.
We also made these decisive references to location in Tiny
House:
In this appeal we decide if the City, in the exercise of
its police power, may enact a zoning ordinance regulating
the location of an establishment selling alcoholic
beverages.
222 Va. at 416, 281 S.E.2d at 837 (emphasis added).
We hold that the ABC Commission's exclusive authority to
license and regulate the sale and purchase of alcoholic
beverages in Virginia does not preclude a municipality from
utilizing valid zoning ordinances to regulate the location
of an establishment selling such alcoholic beverages.
Id. at 423, 281 S.E.2d at 841 (emphasis added). 3
3
Emphasizing the use of the word "valid" in the text
quotation from Tiny House, Windy Hill argues that in order for
localities to utilize zoning ordinances to regulate the location
of establishments selling alcoholic beverages, the ordinances
must be valid. "For an ordinance to be valid," the argument
continues, "it must be consistent with state law," and
"Condition 9 . . . is inconsistent with State law in that
contrary to Code Sec. 4.1-128A it prohibits any and all use of
alcohol anywhere on Windy Hill's property." However, from our
finding supra that there is no conflict between Condition No. 9
and the ABC Board's authority to regulate the sale and
consumption of alcohol, it follows that Condition No. 9 is
valid.
11
And we meant the word "location" to mean "location," i.e.,
"[t]he specific place or position of a person or thing."
Black's Law Dictionary 951 (7th ed. 1999) (emphasis added).
Under Tiny House's application of the Norfolk zoning ordinance,
the placing of an adult use within 1000 feet of another adult
use is as effectively "site specific" as the location specified
in the conditional use permit involved in this case. Whether a
particular establishment in a commercially zoned district could
be licensed to sell alcohol was readily ascertainable by a mere
measurement, and once the measurement showed the establishment
was within 1000 feet of another adult use, that specific
location became a forbidden place for the sale of alcohol to the
same extent as the location involved here.
But, argues Windy Hill, Condition No. 9 is a prohibition
measure outlawed by Code § 4.1-128(C). Tiny House answers this
argument conclusively:
The Ordinance under question is not a prohibition measure.
It is not designed to prevent or control the use of alcohol
or to regulate the business of those who dispense it. That
is the exclusive province of the ABC Commission. The
Ordinance seeks only to prevent the use of land in a manner
the City has deemed detrimental to the general welfare of
its inhabitants and deemed as having a deleterious effect
on the community. The General Assembly has vested the
authority in the City's legislative body to take this
action.
Id. at 424, 281 S.E.2d at 842.
12
Finally, Windy Hill argues that "[i]f the ordinance [in
question] said that alcohol could not be served on golf courses,
that would be an invalid attempt to control the 'use of alcohol'
under Loudoun County [v. Pumphrey, 221 Va. 205, 269 S.E.2d 361
(1980)] and Code Sec. 4.1-128A." There, a Loudoun County
ordinance required a minimum cash refund value of five cents on
every nonrefillable container in which beverages were offered
for sale in the county. We held the ordinance invalid with
respect to containers for beer and other malt beverages because
the ordinance was inconsistent with state law and preempted by
what is now Code § 4.1-128(A).
Loudoun County v. Pumphrey is inapposite. The case did not
involve a zoning ordinance or the application of zoning
principles and, hence, this Court did not consider the issue
presented here. The Loudoun County ordinance attempted to
regulate "the bottling of alcoholic beverages," 221 Va. at 207,
269 S.E.2d at 363, not the location where they may be sold or
consumed. The location where alcoholic beverages may be sold or
consumed not only has far greater impact upon public health and
safety than the bottling of alcoholic beverages but also
implicates land use to a far greater extent, rendering location
a proper subject for the application of zoning principles. We
noted the effect of this dichotomy upon our decision in Tiny
House when, in distinguishing Loudoun County v. Pumphrey, we
13
said that "[t]he legislature has not granted localities the
power to impose and collect deposits on beverage containers" but
has granted localities "the authority to adopt and enforce
zoning ordinances to ensure the orderly use of land." Tiny
House, 222 Va. at 423, 281 S.E.2d at 841. 4
In conclusion, we will reverse the judgment of the trial
court with respect to Windy Hill and remand the case for the
entry of a permanent injunction against Windy Hill prohibiting
it from further violation of Condition No. 9 of the conditional
use permit. However, we will affirm the judgment with respect
to Ciejek. As noted supra, the trial court sustained Ciejek's
demurrer. One ground of the demurrer stated that the County's
bill of complaint for injunctive relief "does not allege that
Ciejek is violating any county ordinance or that Ciejek intends
4
Also inapposite is an opinion of the Attorney General of
Virginia, cited by Windy Hill, concerning an ordinance of the
Town of Tazewell which provided that "[n]o alcoholic beverage
. . . shall be sold, served or consumed on the premises occupied
by a public dance hall." 1981-82 Op. Atty. Gen. 14. The
Attorney General was asked whether the ordinance was in conflict
with what is now Code § 4.1-128(A). The Attorney General
responded that Loudoun County v. Pumphrey controlled because the
Town had "not attempted to regulate the location of dance halls
as it might under the Tiny House decision" but rather had sought
to prohibit "the possession, sale, use and drinking of alcoholic
beverages in dance halls." However, as we have demonstrated in
the text, Tiny House controls here because Condition No. 9
regulates the location where alcoholic beverages may be sold or
consumed, and application of the condition is limited to the one
establishment involved in the conditional use permit, unlike the
Tazewell ordinance, which applied to all dance halls in the Town
of Tazewell.
14
to violate any county ordinance," and another ground stated that
the bill of complaint "does not allege that Ciejek is violating
or intends to violate any condition of zoning." There is no
cause for the entry of an injunction unless the alleged wrong is
actually occurring or "is actually threatened or apprehended
with reasonable probability." WTAR Radio-TV Corp. v. City
Council of Virginia Beach, 216 Va. 892, 895, 223 S.E.2d 895, 898
(1976). An examination of the County's bill of complaint for
injunctive relief reveals that, under the WTAR test, the bill is
woefully deficient for the reasons assigned in the demurrer.
The trial court was plainly right, therefore, in sustaining the
demurrer.
Affirmed in part,
reversed in part,
and remanded.
15