Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
ANNE F. DAIL, ET AL.
v. Record No. 991591 OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2000
YORK COUNTY, ET AL.
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
In this appeal, we consider whether the trial court
properly held that the landowners' declaratory judgment action
challenging provisions of zoning ordinances addressing
silvicultural activity 1 was premature because the landowners
had not exhausted available administrative remedies and,
alternatively, that the ordinances were valid.
Anne F. Dail and her son, James T. Dail, III, (the Dails)
own approximately 37 acres of undeveloped, wooded property in
York County. The parcel is zoned RR (Rural Residential), a
zoning classification which allows forestry as a use of right
without a special use permit. The parcel was enrolled in York
County's land use tax program as land devoted to forest use.
In January 1998, the Dails informed the York County
Zoning Administrator by letter that they intended to harvest
timber on the tract. The Dails stated that they intended to
1
"Silvicultural activity" means "any forest management
activity, including but not limited to the harvesting of
timber, the construction of roads and trails for forest
comply with the best management practices for forestry
promulgated by the State Forester but did not intend to comply
with certain provisions of § 24.1-419 of the York County
zoning ordinance, "Standards for Forestry Operations," (the
Forestry Ordinance). The Dails' refusal to comply with parts
of the Forestry Ordinance was based on their belief that such
provisions were in conflict with, and preempted by, Code
§ 10.1-1126.1.
The zoning administrator responded that if the Dails
harvested the timber without submitting a forest management
plan or maintaining the buffer zone as required by the
Forestry Ordinance, they would be in violation of the county
zoning ordinance and would be subject to the penalties
prescribed by law.
The Dails proceeded to file a bill of complaint seeking a
declaratory judgment and injunctive relief. They maintained,
as they had in their letter to the zoning administrator, that
certain portions of the Forestry Ordinance were preempted by
Code § 10.1-1126.1 and, therefore, were invalid and ultra
vires. In response to the Dails' interrogatories, the County
stated that the Dails' timber harvest proposal would also be
subject to two additional sections of the County's zoning
management purposes, and the preparation of property for
reforestation." Code § 10.1-1181.1.
2
ordinance: § 24.1-376, "WMP-Watershed management and
protection area overlay district," (WMP Ordinance); and
§ 24.1-372, "EMA-Environmental management area overlay
district," (EMA Ordinance). Based on this representation, the
Dails filed an amended bill of complaint expanding their
challenge to portions of the WMP and EMA Ordinances.
The County filed a motion to dismiss and a special plea
asserting the Ordinances were valid and that the Dails'
complaint was premature because they had not exhausted their
administrative remedies. The Dails filed a motion for summary
judgment.
Following argument of counsel, the trial court entered an
order granting the County's motion to dismiss. The trial
court held that the Dails had failed to exhaust their
administrative remedies and that, "[e]ven if exhaustion of
administrative remedies is not required," the Dails "conceded
that the County's zoning regulations as they may be applied to
them are not unreasonable, and the Court finds that the
County's zoning regulations do not conflict with § 10.1-
1126.1, Code of Virginia, are not ultra vires, and, indeed,
are reasonable and necessary, and serve to protect the health,
safety and welfare of the public." The trial court's order
also denied the Dails' motion for summary judgment.
3
On appeal, the Dails assert that the trial court erred in
denying their motion for summary judgment because (1) they
were not required to exhaust their administrative remedies;
(2) state law preempts those provisions of the York County
zoning ordinance that require zoning administrator approval
for timber harvest and that prohibit timber harvest in certain
areas; and (3) the limitations imposed on forestry by the York
County zoning ordinance are invalid because they conflict with
state law. We consider these assertions in order.
I. Exhaustion of Administrative Remedies
The threshold matter for determination is whether the
challenge to the zoning ordinance raised by the Dails required
them to exhaust their administrative remedies. The County
argues that without the zoning administrator's review of the
Dails' forest management plan, there is no indication of the
extent, if any, that the zoning administrator would restrict
the timber harvest proposed by the Dails. The County further
argues that the Dails' challenge to the reasonableness of the
County's ordinance "is properly the subject of an appeal to
the BZA before an action can be instituted in circuit court."
We disagree.
The requirement that a landowner must exhaust his
administrative remedies before filing a declaratory judgment
action is based on the principle that courts do not address
4
issues based on circumstances which may never materialize. If
the landowner can obtain a variance or other modification of
the challenged ordinance as applied to his property, the
landowner would no longer be prejudiced by the ordinance and
would have no standing to attack the ordinance. Gayton
Triangle Land Co. v. Henrico County, 216 Va. 764, 766, 222
S.E.2d 570, 572 (1976). However, the exhaustion of
administrative remedies doctrine does not apply to
circumstances in which the challenge to the ordinance could
not be remedied by a variance or other action of the County.
Bd. of Super. v. Rowe, 216 Va. 128, 133, 216 S.E.2d 199, 205
(1975).
In this case, the Dails do not assert that the Forestry,
EMA, or WMP Ordinances were invalid or unreasonable as applied
to their property. 2 Rather, the Dails contend that the
Ordinances were invalid as applied to any property satisfying
the criteria of Code § 10.1-1126.1 because the Ordinances
conflicted with, and were preempted by, Code § 10.1-1126.1.
Considering the Ordinances as invalid local legislation, and
ultra vires acts, the Dails assert that they were not required
2
The trial court held that the Dails conceded that the
ordinances were not unreasonable as applied to their property
and this holding was not the subject of an assignment of
error.
5
to comply with the provisions of the county zoning ordinance
in question.
The Dails' challenge requires a determination whether the
challenged ordinances are valid exercises of the County's
zoning authority. Neither the zoning administrator nor the
board of zoning appeals has the authority to determine the
validity of a zoning ordinance. Town of Jonesville v. Powell
Valley Village Limited Partnership, 254 Va. 70, 74, 487 S.E.2d
207, 210 (1997). Therefore, pursuing administrative remedies
could not have resolved the issues presented by the Dails, and
a suit seeking a declaratory judgment was appropriate.
Accordingly, we conclude that the trial court erred in
dismissing the amended bill of complaint for failure to
exhaust administrative remedies.
II. Validity of Ordinances
We now turn to the various challenges the Dails make
regarding the validity of certain portions of the York County
zoning ordinance. Subsection A of Code § 10.1-1126.1 states
that it is a "beneficial and desirable use" of the forest
resources of this Commonwealth to practice forestry "in
accordance" with the best management practices promulgated by
the State Forester. Subsection B of that section places
limitations on the regulations localities can impose on
silvicultural activity conducted on property such as the
6
Dails. 3 The limitations placed on the localities are that the
ordinances (1) may not prohibit or unreasonably limit such
silvicultural activity, (2) may not impose a permit or fee
requirement to engage in such activity, (3) must be
"reasonable and necessary to protect the health, safety and
welfare" of the localities' residents, and (4) may not
"conflict with the purposes of promoting the growth,
continuation and beneficial use of the Commonwealth's
privately owned forest resources." Code § 10.1-1126.1(B).
The Dails assert that a number of the provisions in the
Forestry, EMA, and WMP Ordinances are invalid because they are
preempted by state law or are inconsistent with state law.
Specifically, the Dails assert that the requirement imposed by
the Forestry Ordinance that the zoning administrator approve a
forest management plan before engaging in silvicultural
activities and the provisions in the EMA Ordinance regarding
clear cutting of timber are preempted and invalid because they
directly contravene Code § 10.1-1126.1(B). The Dails also
contend that even if the provisions regarding clear cutting
3
Subsection B of Code § 10.1-1126.1 applies to
silvicultural activity (1) conducted in a manner which
complies with the best management practices promulgated by the
State Forester and (2) located on property defined as real
estate devoted to forestry use under § 58.1-3230 or in a
district established pursuant to Chapter 43 or 44 of Title
15.2. There is no dispute that the Dails' property meets
these criteria.
7
are not preempted, they, along with other provisions of the
Ordinances regarding buffer zones, nevertheless are invalid
because they violate state law established for the regulation
of forestry and the protection of water quality in the
Commonwealth.
A. Permit Requirement
The Dails assert that the requirement in the Forestry
Ordinance that a forest management plan be approved by the
zoning administrator is in effect a permit requirement and,
therefore, conflicts with the provision of Code § 10.1-
1126.1(B) prohibiting localities from imposing "permits." We
disagree with the Dails' interpretation of the statute because
it is not supported by the language in the statute and it
relegates the submission and review process allowed by the
statute to one of mere notice filing.
Code § 10.1-1126.1(B) authorizes a county zoning
administrator to review proposed silvicultural activity to
determine whether it "complies with applicable local zoning
requirements." Allowing proposed activity to be reviewed for
compliance implies that the review process encompasses more
than simply a review of a proposed plan of activity. The
statutory review process includes a component of evaluation
and decision regarding compliance. Describing this decision
as an "approval" in the Forestry Ordinance is consistent with
8
authorizing the zoning administrator to make such a
determination regarding compliance, and does not create a
permit requirement.
The Dails further argue that the compliance review is
limited to determining whether the forestry plan complies with
other zoning ordinances relating to non-silvicultural
activities, such as noise abatement ordinances. However,
there is nothing in the statute that suggests such a limited
interpretation, and nothing in the statute suggests that the
County cannot enact ordinances affecting silvicultural
activity.
Therefore, we conclude that the provisions of the
Forestry Ordinance requiring submission and approval of a
forest management plan by the zoning administrator do not
impose a permit requirement for silvicultural activities and
therefore do not contravene, and are not preempted, by Code
§ 10.1-1126.1(B).
B. Clear Cutting of Timber
The Dails next turn to the aspects of Code § 10.1-
1126.1(B) which forbid the enactment of local ordinances that
prohibit silvicultural activity. The Dails maintain that a
portion of the EMA Ordinance, § 24.1-372(e)(5), prohibits
clear cutting of timber and, therefore, is invalid. However,
reading the provision challenged by the Dails in its entirety
9
shows that it is not an absolute prohibition on clear cutting
of timber in areas subject to the EMA Ordinance.
The portion of the EMA Ordinance challenged by the Dails
states that, in those areas subject to the Ordinance:
Clear cutting of trees shall not be permitted.
However, the zoning administrator may permit
selected thinning based upon best management
practices and in accordance with an approved
plan.
§ 24.1-372(e)(5), York County Code. We do not interpret this
language as prohibiting silvicultural activity. This provision
is a limitation on clear cutting, which can be altered by the
zoning administrator. Therefore, this provision does not
contravene, and is not preempted by, Code § 10.1-1126.1(B). 4
C. Buffer Requirements
Finally, relying on Code §§ 1-13.17, 15.2-1200, and 15.2-
2283, the Dails contend that, even if the provision regarding
clear cutting is not preempted, it, along with other
provisions establishing buffer zones, are invalid because they
conflict with, or are inconsistent with, state law.
The Dails assert that the statutory scheme for regulating
silvicultural activity includes delegating to the State
4
In their reply brief, the Dails also characterize
subsection (e)(2) of the WMP Ordinance and subsections (f) and
(g) of the Forestry Ordinance as amounting to a prohibition on
harvesting timber. Those sections, however, also allow the
zoning administrator to modify the extent of the buffer zones
imposed by those subsections and allow harvesting of timber.
10
Forester the development of best management practices, Code
§ 10.1-1105, and placing the sole authority to enforce and
implement the laws pertaining to forest and woodlands in the
State Forester, Code §§ 10.1-1181.2 and 10.1-1181.3. Citing
Klingbeil Management Group Co. v. Vito, 233 Va. 445, 357
S.E.2d 200 (1987), the Dails conclude that the provisions of
the Ordinances establishing buffer requirements are invalid
because they address these matters of silviculture activity in
a manner that conflicts with the provisions of the best
management practices promulgated by the State Forester.
This conflict, however, does not render the Ordinance
provisions void. A local ordinance may be invalid because it
conflicts with a state regulation if the state regulation has
"the force and effect of law." Loudoun County v. Pumphrey,
221 Va. 205, 206-07, 269 S.E.2d 361, 362-63 (1980). The
Dails' argument fails because the best management practices
promulgated by the State Forester do not have the force and
effect of law.
The best management practices are only guidelines for use
in forestry activities. Moreover, the State Forester's
enforcement authority extends to the issuance of special
orders for silvicultural activity which is causing or is
likely to cause "pollution" or "an alteration of the physical,
chemical or biological properties of any state waters
11
resulting from sediment deposition presenting an imminent and
substantial danger" to the public health, water supply, or
other endeavors such as recreation or commerce. Code § 10.1-
1181.2(B), (C). The State Forester cannot issue special
orders solely for the violation of a best management practice. 5
Therefore, the provisions of the Ordinances establishing
buffer zones are not invalid based on a conflict with the
buffer zones suggested by the best management practices
because the best management practices do not have the force
and effect of law.
The Dails make a similar argument regarding the validity
of provisions of the Ordinances which regulate silvicultural
activity for the purposes of maintaining water quality. The
Dails say that the State Water Control Board is the sole
agency authorized to administer the state's water control law
and to establish standards for protection of state waters.
The Dails argue that the State Water Control Board has
recognized the best management practices for non-point
pollutant sources such as forestry as practices "to be the
most effective, practicable means of preventing or reducing
the amount of non-point source pollutants entering a water
5
There are certain federally promulgated best management
practices which are mandatory. However, they do not involve
the matters addressed in the Ordinances at issue in this case
12
course." 9 VAC 25-560-120. These practices, therefore,
according to the Dails, are standards "promulgated as part of
an overall scheme designed to regulate and foster the State's
forestry industry" and to the extent the Forestry, EMA, and
WMP Ordinances exceed these standards, they are invalid.
As we have just said, the best management practices are
merely guidelines and do not have the force of state law.
State Water Control Board recognition of these guidelines as
preferred methods for maintaining clean water does not
transform them into enforceable regulations. Therefore,
provisions in the challenged Ordinances which conflict with
the best management practices are not invalid on the basis
that they conflict with state law governing water quality.
Finally, we note that in their reply brief, the Dails
argue that the limitations placed on a locality's general
police powers and zoning authority by Code § 10.1-1126.1(B)
reflect an intent by the General Assembly to "change the
status quo," and to impose "the burden upon localities" if
they enact requirements that exceed the best management
practices "to show that the State regulations are inadequate
to protect the health, safety and welfare of their citizens
and, in no event, would be relevant to the Dails' challenge
based on preemption or conflict with state law.
13
and that local regulation is necessary to meet identified
shortcomings in the State program."
We reject this invitation to abandon the presumption of
validity afforded a local government ordinance and to adopt
the burden shifting scheme proposed by the Dails. We find the
suggestion particularly inappropriate in this case because the
Ordinances at issue address conditions contained in
guidelines, not in state statutes or regulations, and because
many of the challenged requirements of those Ordinances may be
altered by the zoning administrator. Furthermore, to the
extent that this argument addresses the requirement of Code
§ 10.1-1126.1(B) that a locality's ordinance regulating
silvicultural activity be "reasonable and necessary to protect
the health, safety and welfare" of the locality's residents,
we will not consider the argument because the Dails did not
assign error to the trial court's conclusion that the
ordinances "are reasonable and necessary, and serve to protect
the health, safety and welfare of the public."
For the above reasons, we will reverse that portion of
the trial court's judgment concluding that the Dails were
required to exhaust their administrative remedies, and affirm
that portion of the judgment concluding that the challenged
provisions of the York County zoning ordinance are valid.
Reversed in part,
14
affirmed in part,
and final judgment.
15