Present: All the Justices
TOWN OF JONESVILLE, ET AL.
v. Record Nos. 961738 OPINION BY JUSTICE ELIZABETH B. LACY
and 962016 June 6, 1997
POWELL VALLEY VILLAGE
LIMITED PARTNERSHIP, ET AL.
FROM THE CIRCUIT COURT OF LEE COUNTY
Ford C. Quillen, Judge
In 1989, the Town of Jonesville (the Town) adopted a
zoning ordinance establishing zoning classifications for the
entire town and procedures for enforcing the ordinance. In
1990, pursuant to the ordinance, Powell Valley Village Limited
Partnership applied for, and received, a zoning permit to
construct low and moderate income residence apartments on land
it owned in the Town. The Town amended its zoning ordinance in
1993 by requiring a special use permit for buildings with more
than six residential units. In 1994, Powell Valley Village
Limited Partnership and its general partner, Hunt & Associates
of Virginia, Inc. (collectively "the Housing Group") applied
for a building permit based on its 1990 zoning permit. Jack
Collins, the county building inspector charged with enforcing
the state building code and town ordinance, ultimately denied
the building permit stating that the Housing Group had to
"resubmit" the apartment project for zoning approval.
The Housing Group filed this action seeking a declaratory
judgment that it had a vested right in the 1990 zoning permit
or, alternatively, that the 1989 zoning ordinance and "all
amendments thereto" were void because the Town had not adopted
a comprehensive plan prior to adoption of the ordinance. The
Housing Group's pleadings also contained a petition for
issuance of a writ of mandamus to require the county building
inspector to issue a building permit. Following discovery, the
Housing Group filed a motion for summary judgment on its
declaratory judgment count. The trial court, after considering
the briefs and arguments of counsel, granted the Housing
Group's motion for summary judgment, holding that when the 1989
ordinance was adopted the Town had not adopted a comprehensive
plan pursuant to Code §§ 15.1-446.1 and -490 and, therefore,
"the zoning ordinance was void ab initio." At a subsequent
hearing on the Housing Group's petition for mandamus, the trial
court granted the petition and ordered the county building
inspector to issue the building permit upon payment of the
building permit fee. We awarded appeals to the Town and the
county building inspector from both orders and combined the
appeals for review.
The Town and the county building inspector raise a number
of assignments of error on appeal relating to the trial court's
orders granting the declaratory judgment and the petition for a
writ of mandamus. Many of the issues are interrelated and, for
convenience and clarity, will be considered in categories.
I. Exhaustion of Administrative Remedies
Relying on Gayton Triangle Land Co. v. Board of
Supervisors of Henrico County, 216 Va. 764, 222 S.E.2d 570
(1976), and Phillips v. Telum, Inc., 223 Va. 585, 292 S.E.2d
311 (1982), the Town argues that the Housing Group had to
exhaust its administrative remedies before it could file a
declaratory judgment action or a petition for mandamus. 1
Because the Housing Group did not appeal the county building
inspector's March 1994 decision denying the building permit to
the board of zoning appeals, the Town argues, the trial court
should have dismissed this action.
As a general rule, administrative remedies must be
exhausted before a court will take cognizance of a zoning
dispute. Board of Supervisors of Henrico County v. Market
Inns, Inc., 228 Va. 82, 86, 319 S.E.2d 737, 739-40 (1984). In
Gayton Triangle, the landowner sought a declaratory judgment
that a rezoning ordinance was unconstitutional as applied to
its property. In holding that the landowner had failed to
exhaust its administrative remedies, the Court reasoned that
the restrictive rezoning could have been remedied by a variance
granted by the board of zoning appeals and until that body
acts, "it cannot be said that the zoning power [had] been fully
and finally applied." 216 Va. at 767, 222 S.E.2d at 573.
Similarly, in Phillips, the contract purchaser of land sought a
writ of mandamus when it was denied a building permit because
the county planner determined that the proposed use was not
permitted in the zoning district. We held that the applicant
could not file a petition for a writ of mandamus because the
1 1
This assertion was initially raised in the Town's
special plea to dismiss. The trial court did not directly rule
on the plea, but the decision of the trial court implicitly
ruled on the issue and denied the plea. Lowry v. Noell, 177
Va. 238, 241, 13 S.E.2d 312, 313 (1941).
board of zoning appeals had the power to interpret the zoning
ordinances and, in a case involving ordinance interpretation,
the applicant must "exhaust administrative remedies by
appealing to the appropriate board of zoning appeals before
resorting to court action." 223 Va. at 589, 292 S.E.2d at 314.
In this case, the Housing Group challenged the validity of
the ordinance based on the Town's failure to comply with
§§ 15.1-446.1 and -490. The authority of zoning administrators
and boards of zoning appeals is prescribed by statute. Board
of Zoning Appeals of James City County v. University Square
Assocs., 246 Va. 290, 294, 435 S.E.2d 385, 388 (1993). No
statute confers the authority to rule on the validity of zoning
ordinances upon zoning administrators or boards of zoning
appeals. While zoning administrators and boards of zoning
appeals must necessarily interpret zoning ordinances to execute
their responsibilities, that obligation does not give rise to a
power to declare these ordinances invalid. That is a
determination within the sole province of the judiciary. See
Holland v. Johnson, 241 Va. 553, 555-56, 403 S.E.2d 356, 357-58
(1991). Thus, in this case, unlike Gayton Triangle and
Phillips, there was "no administrative remedy equal to the
relief sought" which the Housing Group could have acquired.
Board of Supervisors of James City County v. Rowe, 216 Va. 128,
133, 216 S.E.2d 199, 205 (1975); see also Notestein v. Board of
Supervisors of Appomattox County, 240 Va. 146, 153, 393 S.E.2d
205, 209 (1990). Accordingly, the Housing Group was not
required to appeal the county building inspector's
determination or to apply for a new zoning permit under the
zoning ordinance as amended in 1993.
II. The Validity of the 1989 Zoning Ordinance
Municipalities in Virginia can only exercise those powers
expressly or impliedly granted to them and only in the manner
prescribed by the General Assembly. Board of Supervisors of
Fairfax County v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-
56 (1975). Failure to abide by the statutory prescriptions for
the adoption of an ordinance renders the ordinance void ab
initio. City Council of Alexandria v. Potomac Greens Assocs.
Partnership, 245 Va. 371, 378, 429 S.E.2d 225, 228 (1993).
In 1975, the General Assembly enacted legislation which
required all governing bodies in the state to adopt a
comprehensive plan by 1980. § 15.1-446.1. Such plans must be
reviewed every five years. § 15.1-454. Section 15.1-490
requires that zoning ordinances be drawn with "reasonable
consideration for" the comprehensive plan. Matthews v. Board
of Zoning Appeals of Greene County, 218 Va. 270, 277 n.1, 237
S.E.2d 128, 132 n.1 (1977).
The Town asserts that its 1989 zoning ordinance "comports
with every requirement of a comprehensive plan except that it
does [not] have a label that calls it a comprehensive plan."
Relying on cases from other jurisdictions and the provisions of
§ 15.1-446.1 which allow a comprehensive plan to include a
zoning ordinance, the Town argues that the contents of the
document should determine whether the document is a
comprehensive plan and, in this case, the Town satisfied the
comprehensive plan requirement when it adopted the 1989 zoning
ordinance. The record, however, does not support the Town's
contention.
A comprehensive plan, as described by the General
Assembly, is general in nature and serves as a guide for the
coordinated development of the territory to meet the present
and future needs of the community and promote the general
welfare of its citizens. § 15.1-446.1. It is a studied plan
for zoning, adopted after consideration of public comment. Id.
Prior to its adoption, a local governing body must conduct
studies covering a wide range of factors including existing
land use and development, trends and growth, population,
employment and economic factors, public facilities,
transportation facilities, and housing needs. § 15.1-447. The
local planning commission must hold public hearings on the
proposed comprehensive plan, § 15.1-448, and if approved by the
planning commission, the governing body, after public hearing
and notice, may adopt, amend, or disapprove the plan. § 15.1-
450.
The zoning ordinance in this case, while a comprehensive
zoning regulation, does not contain a number of the elements
required to be included in a comprehensive plan under § 15.1-
446.1, such as "long-range recommendations for the general
development of the territory covered by the plan" and
indications of "where existing lands or facilities are proposed
to be extended, widened, removed, [or] relocated."
Furthermore, the record in this case does not indicate that any
of the studies required by § 15.1-447 were conducted or that
the planning commission considered, held hearings, or
recommended the plan to the governing body in accordance with
§ 15.1-448. 2 Accordingly, we conclude that the 1989 zoning
ordinance, as amended, did not constitute a comprehensive plan
under § 15.1-446.1.
Allowing a municipality to adopt a zoning ordinance
without considering a comprehensive plan, because it does not
have such a plan, would permit manipulation of the zoning
statutes and condone violation of §§ 15.1-446.1,
-454, and -490. A comprehensive plan provides a guideline for
future development and systematic change, reached after
consultation with experts and the public. "[T]he Virginia
statutes assure [landowners] that such a change will not be
made suddenly, arbitrarily, or capriciously but only after a
period of investigation and community planning." Board of
Supervisors of Fairfax County v. Snell Constr. Corp., 214 Va.
655, 658, 202 S.E.2d 889, 892 (1974). While the Town is
correct in its arguments that neither the statutes nor our
prior cases specifically require a local government to enact a
comprehensive plan before it enacts a zoning ordinance,
considering all relevant statutes as we must, Board of
Supervisors of King & Queen County v. Cox, 155 Va. 687, 707,
156 S.E. 755, 761 (1931), we conclude that §§ 15.1-446.1
through -498 reflect a legislative prescription for local
2 2
The Town does not argue that it was prevented from
introducing such evidence.
zoning actions which, after 1980, required the adoption of a
comprehensive plan prior to the adoption of a zoning ordinance.
III. Remedy
A. Declaratory Judgment Action
The Town urges that, even if the trial court was correct
in declaring the ordinance void ab initio, it nevertheless
erred in failing to suspend its order to allow the Town
sufficient time to take appropriate legislative action. The
Town argues that the result of the trial court's action is to
leave the Town without any zoning regulations. Under these
circumstances, the Town suggests that the procedure adopted in
Board of Supervisors of James City County v. Rowe, 216 Va. 128,
216 S.E.2d 199 (1975), should be adopted here. In Rowe, James
City County's entire zoning ordinance was declared
unconstitutional but, because the effect of the trial court's
decree "was to leave the land unzoned," the case was remanded
to the trial court with instructions to enter an order
suspending the decree for a period of time during which further
legislative action could be considered. Id. at 148, 216 S.E.2d
at 215. Such a procedure, the Town adds, is also consistent
with this Court's decision in Potomac Greens, in which, after
declaring an amendment to a zoning ordinance of the City of
Alexandria void ab initio for failure to comply with certain
notice requirements, the Court directed that the decision
"shall operate prospectively only, and shall not affect other
amendments enacted prior to our decision in this case." 245
Va. at 378, 429 S.E.2d at 229.
We agree with the Town's assertion concerning the
prospective nature of the decision and direct that the holding
in this case -- that adoption of a comprehensive plan is a
prerequisite to the adoption of a zoning ordinance -- is
limited to the instant case and shall operate prospectively
only. See also Perkins v. County of Albemarle, 214 Va. 416,
418, 200 S.E.2d 566, 568 (1973). We disagree, however, that
suspension of the decision in this case is consistent with, or
required by, our previous cases.
The relief awarded in Rowe was based on facts materially
different from the facts in this case. In Rowe, the trial
court declared a zoning amendment, which rezoned an area of the
county from a B-1 to a B-2 classification, unconstitutional.
The effect of this decision was to leave unzoned territory that
previously had been zoned. Thus, the decision did not return
the territory to the same zoned status it held prior to the
enactment of the unconstitutional zoning amendment. 216 Va. at
148, 216 S.E.2d at 215. In the instant case, prior to 1989,
the Town had no zoning ordinance at all. Therefore, the effect
of the decision of the trial court is to return the territory
to the same unzoned status it held prior to the enactment of
the void ordinance. See Matthews v. Board of Zoning Appeals of
Greene County, 218 Va. at 283, 237 S.E.2d at 135-36.
In Potomac Greens, while we directed that our decision
apply prospectively only and that it not affect other
amendments to the city's zoning ordinance, we held that the
zoning amendment at issue was void ab initio and could not be
enforced by the City of Alexandria. 245 Va. at 378, 429 S.E.2d
at 228. Likewise, the Town's 1989 zoning ordinance challenged
in this case, including "all amendments thereto," is void ab
initio and may not be enforced by the Town. Accordingly, under
the facts of this case, we hold that the trial court was not
required to suspend the effective date of its decision until
the Town could take further legislative action.
B. Mandamus
The Town also argues that the trial court erred in issuing
a writ of mandamus because the issuance of the building permit
was not a ministerial function, the building permit fee had not
been paid, and the county building inspector had no authority
to issue the permit. These arguments are not well taken.
The record is clear that the county building inspector
denied the building permit for the sole reason that the Housing
Group did not have a zoning permit under the Town's zoning
ordinance. When the trial court's decision eliminated this
requirement, issuing the building permit was "'no longer
discretionary but ministerial and mandatory.'" Phillips, 223
Va. at 591, 292 S.E.2d at 314 (quoting Planning Commission of
Falls Church v. Berman, 211 Va. 774, 777, 180 S.E.2d 670, 672
(1971)). Additionally, the trial court conditioned the
issuance of the writ upon the Housing Group's payment of the
building permit fee.
Finally, we reject the Town's argument that the county
building inspector had no authority to issue the permit once
the ordinance was declared invalid. The county building
inspector is charged with enforcing the Virginia Uniform
Statewide Building Code (the Building Code) in Lee County. The
Building Code requires issuance of a permit prior to
construction of any building to insure that the proposed work
conforms to the requirements of the Building Code. U.S.B.C.
§§ 105.1, 109.1 (1994). Towns such as Jonesville, with
populations of less than 3,500, may elect to administer the
Building Code; however, if the town does not so elect, the
county in which the town is located is responsible for the
administration and enforcement of the Building Code. Code
§ 36-105. There is nothing in the 1989 zoning ordinance or the
record in this case which indicates that the Town has elected
to undertake the responsibility of administering or enforcing
the Building Code. Therefore, the county building inspector
has the authority to issue the permit in this case.
Accordingly, for the reasons stated, we will affirm the
judgment of the trial court.
Affirmed.