Present: All the Justices
CHARLOTTE W. TRIBLE
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 941302 June 9, 1995
R. TYLER BLAND, III, ET AL.
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Samuel Taylor Powell, III, Judge
In this land use controversy, in which a municipality has
permitted the operation of a group home in a residential
district, the appeal turns upon the meaning of Code § 15.1-486.3
enacted in 1990. Acts 1990, ch. 814.
At the time of this dispute, § 15.1-486.3 provided:
"Group homes of eight or less single-family
residence.-- For the purposes of locally adopted zoning
ordinances, a residential facility in which no more
than eight mentally ill, mentally retarded, or
developmentally disabled persons reside, with one or
more resident counselors or other staff persons, shall
be considered for all purposes residential occupancy by
a single family. For the purposes of this section,
mental illness and developmental disability shall not
include current illegal use of or addiction to a
controlled substance as defined in § 54.1-3401. No
conditions more restrictive than those imposed on
residences occupied by persons related by blood,
marriage, or adoption shall be imposed on such
facility. A residential facility shall be deemed to be
any group home or other residential facility for which
the Department of Mental Health, Mental Retardation and
Substance Abuse Services is the licensing authority
pursuant to this Code."
The statute was amended in 1993, but that change does not affect
this controversy. See Acts 1993, ch. 373.
At the time of this dispute, a locally adopted zoning
ordinance was effective in the Town of West Point. Section 70-24
of the ordinance defines "group home" as:
"A residential facility, otherwise meeting the
definition of a single family detached dwelling, in
which not more than eight physically handicapped,
mentally ill, mentally retarded or other
developmentally disabled persons, not related by blood
or marriage, reside on a long-term basis, with one or
more resident counselors or staff persons, the purpose
of such facility being to provide to its occupants the
benefits of normal residential surroundings to achieve
optimal assimilation into the community. The term
`group home' shall include family care homes or foster
homes, and shall not include residential facilities,
the principal purpose of which is to provide emergency
shelter, diagnostic or treatment services on a short-
term residential basis."
In December 1992, the Town, through its zoning
administrator, issued a Certificate of Use and Occupancy to the
owner of a single-family detached dwelling for use as a "Group
Home." The certificate stated, under "Special Conditions,"
"Self-Care Only / No More Than 21 Residents."
In August 1993, appellant Charlotte W. Trible filed a bill
of complaint for declaratory judgment and injunction naming as
defendants the Town's mayor, R. Tyler Bland, III, the Town's
council, the Town's manager and zoning administrator, members of
the Town's board of zoning appeals, and the Town's attorney
(collectively, the Town). The plaintiff lives in a single-family
residence adjoining the group home. Noting that the certificate
of use and occupancy was issued without notice to the property
owners adjacent to the group home, the plaintiff alleged that she
disputed the granting of the certificate in July 1993, when she
learned of its issuance, and sought a hearing before the board of
zoning appeals. She asserted that she was denied a hearing
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because the board, upon advice of the Town's attorney, ruled that
her request for review of the zoning administrator's decision was
time-barred.
The plaintiff further alleged that more than eight persons
reside in the group home, in violation of Code § 15.1-486.3 and
Town ordinance § 70-24. She alleged the issuance of the permit,
and subsequent actions by Town officials in allowing 21 partially
physically and developmentally disabled individuals to reside in
the adjoining property, violated various other provisions of the
State statutes and Town ordinances.
The plaintiff sought a judgment declaring the Town ordinance
invalid as it pertains to group homes because, she alleged, it
does not comply with the authority granted to localities by the
General Assembly. She also sought an injunction preventing the
enforcement of the ordinance and operation of the home, and asked
that the Town be required to rescind the certificate of
occupancy.
The Town filed a demurrer which, following argument of
counsel, the trial court sustained. In a letter opinion, the
court noted that the facts were undisputed. The court pointed
out that the Town's zoning ordinance permitted both the
plaintiff's dwelling and the group home to be located within the
R-3 zoning district.
The trial court decided that the "limitation in existence at
the time of the issuance of the certificate of occupancy limited
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the localities' authority to `zone out' group homes described in
§ 15.1-486.3 but did not limit the localities' authority to
define a group home." The court ruled that a "more expansive
definition of a group home as provided in § 70-24 is permitted"
under the applicable state statute and is "not limited by § 15.1-
486.3 and accordingly § 70-24 is not in violation of the Dillon
rule."
Consequently, the trial court held that "it was appropriate
for the zoning administrator to issue the certificate of
occupancy for the group home." The court also decided that the
board of zoning appeals properly declined to hear the plaintiff's
appeal because it was time-barred under Code § 15.1-496.1 (any
person aggrieved by decision of zoning administrator may appeal
to board of zoning appeals within 30 days after decision).
Although sustaining the demurrer, the trial court granted the
plaintiff leave to amend her pleadings to raise certain factual
issues and to "proceed to trial if she be so advised."
The plaintiff elected not to amend. We awarded her this
appeal on limited grounds from the trial court's May 1994 order
dismissing the bill of complaint.
The dispositive question is whether Code § 15.1-486.3 limits
the zoning power of local authorities to allow group homes in
residential districts, as the plaintiff contends, or whether the
statute limits such power of localities to exclude group homes
from residential districts, as the Town contends. We agree with
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the Town's contention, and will affirm. *
The General Assembly has granted localities broad authority
to adopt zoning ordinances pursuant to Code § 15.1-486. As
pertinent here, the statute provides that a municipality may, by
ordinance, classify the territory under its jurisdiction into
districts and, in each district, may determine the utilization of
premises for residential uses. Code § 15.1-486(a). Of course,
as the plaintiff points out, a municipality's ordinances must not
be inconsistent with the laws of the Commonwealth. Code § 1-
13.17.
The crux of the plaintiff's argument is that Code § 15.1-
486.3 gives localities the power to allow a specific type of
group home in residential districts, restricting the number of
occupants to a maximum of eight persons. But, the statute deals
with "family composition rules," which "are an essential
component of single-family residential use restrictions." City
of Edmonds v. Oxford House, Inc., No. 94-23, 1995 U.S. LEXIS
3183, at *14 (U.S. May 15, 1995), decided after the present case
was argued on appeal. "Maximum occupancy restrictions, in
*
We are not presented with the question whether the Town has
violated the state statute or its own ordinance by allowing more
than eight developmentally disabled persons to reside in the
group home in question. As we have said, the trial court ruled
that the plaintiff's appeal from the zoning administrator's
decision to permit occupancy by 21 persons in the home was time-
barred. This ruling attacking the violation of the statute and
ordinance was not the subject of any assignment of error. This
appellate debate deals solely with the meaning of the state
statute.
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contradistinction, cap the number of occupants per dwelling,
typically in relation to available floor space or the number and
type of rooms . . . . Their purpose is to protect health and
safety by preventing dwelling overcrowding." Id.
Code § 15.1-486.3 is a classic example of "a use restriction
and complementing family composition rule," id. at *19, and is
not a maximum occupancy restriction. The statutory provisions
"do not cap the number of people who may live in a dwelling."
Id. Rather, the statute plainly provides that a residential
facility housing no more than eight persons with the specified
disabilities, plus staff persons, shall be treated for zoning
purposes the same as residences occupied by a typical family
composed of persons related by blood, marriage, or adoption. As
the Town points out, nothing in the statute prohibits a locality
from being more permissive in its treatment of group homes than
is required by the statutory language; localities are merely
prohibited from being more restrictive.
In sum, Code § 15.1-486.3 only provides that a group home in
which eight or less "mentally ill, mentally retarded, or
developmentally disabled persons reside" that has been licensed
by the Department of Mental Health, Mental Retardation and
Substance Abuse Services may not be excluded from residential
districts by local zoning ordinances. The obvious purpose is to
protect group homes that meet these requirements.
The Town has not violated the statute by allowing a group
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home, with a permit from the Department of Social Services (as
shown by the record) and more than eight disabled persons, to be
operated in a residential district. The Town simply has been
more permissive than the state statute in its definition of the
type of group home permitted in such a district.
Consequently, the judgment of the trial court will be
Affirmed.
CHIEF JUSTICE CARRICO, dissenting.
I dissent. I think City of Edmonds v. Oxford House, Inc.,
___ U.S. ___, ___ S.Ct. ___, (1995), upon which the majority
places so much reliance, is inapposite. The sole question the
Supreme Court decided in Edmonds was whether the definition of
"family" in a local zoning code qualified for exemption from the
anti-discrimination provisions of the federal Fair Housing Act
(FHA). No question about the applicability of the FHA, or any
other federal question, is presented in the case now before this
Court.
Rather, the only question presented here concerns the
interpretation of a state statute, Code § 15.1-486.3, and § 70-24
of the zoning ordinance of the Town of West Point. I think, as
the majority holds, that the effect of § 15.1-486.3 is to limit
the power of a locality to exclude from a residential district a
group home that houses "mentally ill, mentally retarded, or
developmentally disabled persons" and that has been licensed by
the Department of Mental Health, Mental Retardation and Substance
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Abuse Services.
I also think, however, that, in unmistakable terms, both
§ 15.1-486.3 of the Code and § 70-24 of the Town's zoning
ordinance limit to eight the number of mentally ill, mentally
retarded, or developmentally disabled persons who may reside in a
group home located in a residential district. Accordingly,
contrary to the holding of the majority, I would find that the
Town has violated the statute by allowing a group home, with more
than eight disabled persons, to be operated in a residential
district.
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