PRESENT: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
THE CITY COUNCIL OF ALEXANDRIA
OPINION BY
v. Record No. 982573 SENIOR JUSTICE HENRY H. WHITING
September 17, 1999
THE LINDSEY TRUSTS
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
In this appeal, we decide whether a city charter authorizes
the city to adopt a zoning ordinance that modifies the
"grandfathered" rights of property owners.
Carol A. Lindsey and Riggs Bank, co-trustees of The Lindsey
Trusts and owners of property located at 101-103 King Street in
Alexandria (collectively, the Property Owners), brought this
declaratory judgment action against the City of Alexandria, its
city council, mayor, and council members (collectively, the
City). The Property Owners sought to have the court declare
part of an amendment to the Alexandria zoning ordinance null and
void because the City's charter did not authorize its enactment.
Upon considering the parties' stipulated facts, and oral
and written argument, the court agreed with the Property Owners
and entered a declaratory judgment declaring the contested part
of the zoning amendment void and unenforceable. The City
appeals.
In 1976, the Old Town Food Service Corporation began
operating the Fish Market Restaurant at 105 King Street as a use
that was allowed by right under the existing zoning ordinance.
In May 1979, the City amended its zoning ordinance to require a
special use permit for the operation of restaurants. However,
restaurants such as the Fish Market Restaurant that were then
operating without a special use permit were excepted from the
amendment's requirement, and were therefore considered
"grandfathered" uses.
Afterward, but some time before February 1983, the Fish
Market Restaurant expanded its operations into the adjacent
buildings located at 101 and 103 King Street. In February 1983,
the zoning ordinance was again amended to provide that:
For any use now requiring a special use permit,
regardless of whether or not a special use permit has
been granted previously, the enlargement, extension or
increase in the intensity of that use shall require a
separate special use permit.
Alexandria Code § 7-6-193 (emphasis added).
In 1994 and 1995, this portion of the ordinance was amended
to provide:
For any use that now requires a special use permit,
whether or not a special use permit has been granted
previously, any change in the nature of the use or any
enlargement, extension or increase in the intensity of
that use shall require a separate special use permit.
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Alexandria Ordinances 3711 (1994) and 3800 (1995)(emphasis
added).
In 1996, when the lessee ceased its operations and vacated
the 101 and 103 King Street locations (the Premises), the
Property Owners attempted to lease the Premises to another
restaurant tenant. Modifications of the premises were necessary
to operate a restaurant independent of the operation of the
restaurant at 105 King Street. Because the City regarded those
modifications as an intensification of the use of the Premises,
it advised the Property Owners that a special use permit would
be required.
The Property Owners brought this declaratory judgment
action to determine whether the city charter authorized the City
to enact the intensification-of-use provision of the zoning
ordinance. The trial court agreed with the Property Owners
that, since there was no such authorization, the contested
portion of the zoning ordinance was void and unenforceable as a
violation of Dillon's Rule. Accordingly, the court entered a
declaratory judgment to that effect and the City appeals.
The Property Owners contend that the court correctly
applied Dillon's Rule, which we have described in the following
language:
The Dillon Rule of strict construction controls our
determination of the powers of local governing bodies.
This rule provides that municipal corporations have
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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).
City of Chesapeake v. Gardner Enterprises, Inc., 253 Va. 243,
246, 482 S.E.2d 812, 814 (1997).
We turn to the charter to ascertain whether the legislature
has given the City the requisite authority. Section 9.09 of the
charter gives the City the power to adopt a comprehensive zoning
plan, which
shall provide for the regulation and restriction of
the use of land, buildings and structures in the
respective zones and may include but shall not be
limited to the following:
. . . .
(g) It may . . . require that such
[nonconforming] buildings or structures and the use
thereof shall conform to the regulations and
restrictions prescribed for the zone or zones in which
they are situated whenever they are enlarged,
extended, reconstructed or structurally altered; and
may require that such buildings or structures and the
use thereof shall conform to the regulations and
restrictions prescribed for the zone or zones in
which they are situated, in any event within a
reasonable period of time to be specified in the
ordinance.
Alexandria City Charter § 9.09 (emphasis added).
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The parties agree that charter provisions such as § 9.09
"must be construed to be a qualified amendment of the general
law, and controlling in the locality to which it applies."
Pierce v. Dennis, 205 Va. 478, 484, 138 S.E.2d 6, 15 (1964).
Among other things, the City argues that since § 9.09 of
the charter specifically authorizes the eventual termination of
existing uses that do not conform to zoning amendments, it
necessarily includes the power to regulate those uses. The
Property Owners counter by claiming that the City had no express
or implied charter power to regulate the intensification of
"grandfathered" uses. They argue that the charter's enumeration
of the powers to regulate the enlargement, extension,
reconstruction, or structural alteration of such buildings or
their uses necessarily excludes the power to regulate the
intensification of their use.
In Ticonderoga Farms, Inc. v. County of Loudoun, 242 Va.
170, 174, 409 S.E.2d 446, 448 (1991), we held that a county's
power to prohibit solid waste disposal activities necessarily
included the power to regulate those activities. But, as we
noted in Ticonderoga Farms, "[c]onditions imposed upon the
exercise of an act which a governmental body has the power to
prohibit may not, of course, be arbitrary, capricious, or impair
constitutional rights." 242 Va. at 174-75, 409 S.E.2d at 448.
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Here, had the City chosen to treat restaurants operating
with no special use permit as nonconforming uses, it could have
required the termination of their operation after a reasonable
period of time under the powers given it by § 9.09(g) of its
charter. However, the City chose not to exercise that power in
1979. Instead, its ordinance provided that existing restaurants
"shall not be subject to this special use permit requirement,
nor shall they be deemed nonconforming as result of this special
use permit requirement." Later, it decided to exercise its
power to regulate the uses of such restaurants by requiring
special use permits should the restaurants be expanded or their
use intensified. Because the City had the power to terminate
such "grandfathered" uses, we conclude that it also had the
power to regulate them and that it exercised that power by
enacting and enforcing an ordinance requiring a special use
permit should the use be intensified.
The Property Owners also contend that because their use was
not a nonconforming use but a "grandfathered" one expressly
exempted from the requirements of the earlier zoning ordinance,
the City had no authority to affect those rights. We do not
agree with the Property Owners.
The Property Owners' use became what the parties have
described as a "grandfathered" use when the city council chose
not to classify it as nonconforming by excepting such a use from
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the requirements of the amended ordinance. However, the
Property Owners had no vested right in the continuation of their
property's "grandfathered" status protecting them against the
application of an amended zoning ordinance. See Board of Zoning
Appeals of Bland County v. CaseLin Systems, Inc., 256 Va. 206,
210, 501 S.E.2d 397, 400 (1998)(noting that property owners have
no vested property right in the continuation of their property's
existing zoning status).
The ordinance in question seeks only to regulate future
changes in the use of the restaurant and does not attempt to
modify already existing uses. Hence, we find no merit in this
contention. *
Accordingly, we will reverse the declaratory judgment of
the trial court and enter a final judgment that the City had the
authority to enact the contested amendments to the zoning
ordinance.
Reversed and final judgment.
*
We have examined and find no merit in the remaining contentions
of the Property Owners.
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