Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
BOARD OF SUPERVISORS
OF AUGUSTA COUNTY, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990031 November 5, 1999
COUNTRYSIDE INVESTMENT COMPANY, L.C.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Duncan M. Byrd, Jr., Judge
In this appeal, we consider whether certain provisions in
a county's subdivision ordinance violate the Dillon Rule.
The facts relevant to our disposition of this appeal are
not in dispute. Countryside Investment Company, L.C.
(Countryside Investment), is the contract purchaser of a
parcel of land consisting of approximately 140 acres located
in Augusta County. The parcel was given an R-10 residential
zoning classification under the Augusta County Zoning
Ordinance in effect in 1973. This ordinance, which
established minimum lot size and minimum floor space
requirements, provided for a minimum lot area of 9,000 square
feet for property having an R-10 zoning classification.
In 1995, the Augusta County Board of Supervisors enacted
a new zoning ordinance which prescribed a minimum lot area
requirement of 12,000 square feet. Pursuant to the terms of
the new ordinance, the parcel at issue in this appeal enjoyed
the benefit of a "grandfather" clause which retained the
minimum lot area requirement of 9,000 square feet for lots
which might be subdivided within the parcel until the year
2006.
In September 1997, Countryside Investment submitted to
the Augusta County Department of Community Development a
master plan for a proposed subdivision of the parcel which
would contain approximately 427 residential lots. The
Department reviewed the master plan and concluded that the
plan complied with the technical requirements of the County's
Subdivision Ordinance. The Augusta County Planning Commission
reviewed the master plan and unanimously recommended approval
by the Board of Supervisors.
The Board discussed the master plan during several
meetings. The Board also considered comments from the public
and evidence about the impact that the proposed subdivision
would have upon the County's water and sewer capacity, public
school division, transportation capacities, drainage, and
adjacent neighborhoods.
At a meeting in November 1997, the Board tentatively
denied approval of the master plan. The Board enumerated
several reasons for its tentative denial: (1) "a subdivision
of this size located in an area that is predominantly rural in
character should, consistent with good planning practice,
anticipate, account for and accommodate some of the needs for
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non-residential community-type facilities [such as] . . .
sites for religious institutions, passive and active
recreational facilities, and day-care centers"; (2) "the
overall density" of the subdivision and "its potential
significant impact on public facilities and public utilities
in the northern sector of Augusta County, should not exceed a
figure of about two residences per acre, or approximately 270
single-family residences for the entire tract"; (3) some of
the property may not be suitable for residential development
and; the "current proposal to construct 427 residences . . .
would result in an increase in population that cannot be
readily accommodated by the existing public facilities and
utilities serving [that] area."
The Board, in an attempt to modify the master plan,
recommended that Countryside Development: increase the size
of the residential lots; create a "number of large lots of
varying sizes suitable for the construction of community-type
facilities such as churches, nursery schools, and/or day care
centers"; set aside portions of the property "which are least
suitable for development as open space designed to preserve
natural areas where the residents can engage in passive and
active leisure and recreational activities"; and devote "more
space, if necessary, to adequately deal with storm water
drainage and detention."
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Countryside Investment initiated this proceeding against
the Board and Augusta County (collectively the Board) in the
circuit court pursuant to Code § 15.2-2260, seeking judicial
review of the Board's disapproval of the preliminary master
plan. The Board filed responsive pleadings, the parties
stipulated certain evidence, and the circuit court conducted
an ore tenus hearing.
The circuit court ruled, among other things, that §§ 21-6
and -7 of the Augusta County Subdivision Ordinance, upon which
the Board relied when it tentatively denied the master plan,
violated the Dillon Rule because those sections were not
authorized by the enabling legislation in Code §§ 15.2-2241
and -2242. The court entered a decree which ordered approval
of the master plan, and enjoined the Board from taking any
action inconsistent with the decree. The Board appeals.
Code § 15.2-2240, which is a part of the Virginia Land
Subdivision and Development Act, states that "[t]he governing
body of every locality shall adopt an ordinance to assure the
orderly subdivision of land and its development." 1 Code
§ 15.2-2241, which prescribes the mandatory provisions which
must be included in a subdivision ordinance enacted by a
governing body, states in relevant part:
1
The Virginia Land Subdivision and Development Act
consists of Code §§ 15.2-2240 through -2279.
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"A subdivision ordinance shall include
reasonable regulations and provisions that apply to
or provide:
. . . .
"3. For adequate provisions for drainage and
flood control and other public purposes, and for
light and air, and for identifying soil
characteristics; . . . ."
The Board, purportedly relying upon Code § 15.2-2241,
enacted the Augusta County Subdivision Ordinance which
contained the following provisions pertinent to our resolution
of this appeal:
"§ 21-6.
"A. All lots shall be of sufficient size,
shape and dimension to meet all the [zoning]
requirements of . . . this Code.
"B. Size and shape of all lots shall be
subject to approval of the Board of Supervisors. In
no case shall the area or dimensions be less than
that required by Chapter 25 or by approved proffered
conditions applicable to any zoning district.
"§ 21-7.
"If in the opinion of the Board of Supervisors
any tract of land is unsuitable for subdivision, it
shall not be subdivided. A tract shall be deemed
unsuitable for subdivision if adequate provision
cannot be made for any public purpose, including,
but not limited to: drainage and flood control,
protection of light and air, and the preservation of
a rural environment which is also conducive to a
diverse agricultural, industrial, commercial and
residential economy."
The Board argues that the circuit court erred by holding
that §§ 21-6 and -7 of the Subdivision Ordinance are void
because they violate the Dillon Rule. Continuing, the Board
states that when "the General Assembly has delegated the
state's police power, the locality is not required to have
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specific authority for every provision in its ordinance.
Considerable discretion is left to the local government in
such matters." The Board also asserts that even if specific
authority for §§ 21-6 and -7 is necessary, such authority does
exist. Responding, Countryside Investment asserts that even
though the power of subdivision control is a delegation of the
State's police power to a local governing body, such authority
is subject to statutorily prescribed limitations; §§ 21-6 and
-7 of Augusta County Subdivision Ordinance exceed those
limitations and, thus, violate the Dillon Rule. We agree with
Countryside Investment.
We have held that the General Assembly, in providing for
local control of land subdivision, delegated to each locality
a portion of the police power of this Commonwealth. National
Realty Corp. v. City of Virginia Beach, 209 Va. 172, 174-75,
163 S.E.2d 154, 156 (1968); Bd. of Supervisors v. Georgetown
Land Co., 204 Va. 380, 383, 131 S.E.2d 290, 292 (1963).
However, we have also recognized that "[t]he power of a
municipality, unlike that of the State legislature, must be
exercised pursuant to an express grant." National Realty
Corp., 209 Va. at 175, 163 S.E.2d at 156; see also Bd. of
Supervisors v. Reed's Landing Corp., 250 Va. 397, 400, 463
S.E.2d 668, 669 (1995); Hylton Enterprises v. Bd. of
Supervisors, 220 Va. 435, 440, 258 S.E.2d 577, 581 (1979).
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We stated in City of Chesapeake v. Gardner Enterprises,
253 Va. 243, 246, 482 S.E.2d 812, 814 (1997), that
"[t]he Dillon Rule of strict construction
controls our determination of the powers of local
governing bodies. This rule provides that municipal
corporations have only those powers that are
expressly granted, those necessarily or fairly
implied from expressly granted powers, and those
that are essential and indispensable. Ticonderoga
Farms v. County of Loudoun, 242 Va. 170, 173-74, 409
S.E.2d 446, 448 (1991); City of Richmond v. Confrere
Club of Richmond, 239 Va. 77, 79, 387 S.E.2d 471,
473 (1990). When a local ordinance exceeds the
scope of this authority, the ordinance is invalid.
See City of Richmond, 239 Va. at 80, 387 S.E.2d at
473; Tabler v. Board of Supervisors, 221 Va. 200,
204, 269 S.E.2d 358, 361 (1980)."
We specifically discussed the application of the Dillon Rule
to counties in Bd. of Supervisors v. Horne, 216 Va. 113, 117,
215 S.E.2d 453, 455-56 (1975):
"In Virginia the powers of boards of
supervisors are fixed by statute and are limited to
those conferred expressly or by necessary
implication. Gordon v. Fairfax County, 207 Va. 827,
832, 153 S.E.2d 270, 274 (1967); Johnson v.
Goochland County, 206 Va. 235, 237, 142 S.E.2d 501,
502 (1965). This rule is a corollary to Dillon's
Rule that municipal corporations have only those
powers expressly granted, those necessarily or
fairly implied therefrom, and those that are
essential and indispensable. City of Richmond v.
County Board, 199 Va. 679, 684-85, 101 S.E.2d 641,
644-45 (1958)."
In National Realty Corp., supra, we considered whether an
ordinance which imposed a fee for the examination and approval
of final subdivision plats and made payment of the fee a
prerequisite to the recording of the plat by the clerk of the
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circuit court contravened the Virginia Land Subdivision and
Development Act. In National Realty Corp., we acknowledged,
as we recognize here, that the General Assembly, in providing
for local control of land subdivision, delegated a portion of
its police power to local governing bodies. Provisions in a
local subdivision ordinance, however, must derive power from
an authorization from the General Assembly. 209 Va. at 177,
163 S.E.2d at 157-58. Since the local governing body was not
empowered to impose the fee, we held the ordinance invalid.
Id., 163 S.E.2d at 158.
We hold that §§ 21-6 and -7 of the County's Subdivision
Ordinance are void because the General Assembly did not
authorize the Board to enact the challenged requirements in a
subdivision ordinance. Neither Code § 15.2-2241, which
prescribes the mandatory provisions which must be included in
a subdivision ordinance, nor Code § 15.2-2242, which
prescribes optional provisions that may be included in a
subdivision ordinance, authorizes a governing body to enact
provisions in a subdivision ordinance which specify the size
and shapes of lots to be subdivided. Additionally, neither
Code § 15.2-2241 nor -2242 authorizes a governing body to
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prohibit a subdivision of property if the proposed subdivision
is not conducive to the preservation of a rural environment. 2
The Board asserts that it has considerable discretion
when deciding what to include in a subdivision ordinance. We
disagree. As we have already stated, pursuant to the strict
construction required by the Dillon Rule, the Board does not
have unfettered discretion when deciding what matters it may
include in its subdivision ordinance. Rather, the Board must
include those requisites which are mandated in Code § 15.2-
2241 and may, at the Board's discretion, include the optional
provisions of a subdivision ordinance contained in Code
§ 15.2-2242. Additionally, the Board is entitled to exercise
discretion only to the extent permitted by Code §§ 15.2-2241
and -2242. See Helmick v. Town of Warrenton, 254 Va. 225,
232-33, 492 S.E.2d 113, 117 (1997). The Board is not,
however, permitted to ignore the requisites contained in Code
§§ 15.2-2241 and -2242 and, under the guise of a subdivision
ordinance, enact standards which would effectively permit it
2
Our holding does not impair the County's power to enact
zoning ordinances which prescribe minimum lot area
requirements, Code § 15.2-2280, or standards which would
permit the County to consider the rural character of a
community when making zoning decisions, Code § 15.2-2283;
Byrum v. Board of Supervisors, 217 Va. 37, 39, 225 S.E.2d 369,
371 (1976).
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to rezone property in a manner inconsistent with the uses
permitted by the property's zoning classification.
We find no merit in the Board's argument that Code
§ 15.2-2200 authorizes the challenged provisions in the
County's Subdivision Ordinance. Code § 15.2-2200 states:
"This chapter is intended to encourage
localities to improve the public health, safety,
convenience and welfare of its citizens and to plan
for the future development of communities to the end
that transportation systems be carefully planned;
that new community centers be developed with
adequate highway, utility, health, educational, and
recreational facilities; that the need for mineral
resources and the needs of agriculture, industry and
business be recognized in future growth; that
residential areas be provided with healthy
surroundings for family life; that agricultural and
forestal land be preserved; and that the growth of
the community be consonant with the efficient and
economical use of public funds."
This statute, a general declaration of the General Assembly's
intent for Chapter 22 of Title 15.2 concerning planning,
subdivision of land, and zoning, does not confer upon the
Board the power to enact a subdivision ordinance which is more
expansive than the enumerated requisites contained in Code
§§ 15.2-2241 and -2242.
In view of the foregoing, we do not consider the Board's
remaining assignments of error or Countryside Investment's
assignments of cross-error. Accordingly, we will affirm the
decree of the circuit court.
Affirmed.
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