COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman, and Senior Judge Cole
Argued at Richmond, Virginia
RAYMOND L. LAWLESS
v. Record No. 1639-94-2 OPINION BY
JUDGE SAM W. COLEMAN III
COUNTY OF CHESTERFIELD DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
John N. Clifford (Clifford & Duke, on briefs),
for appellant.
Michael S. J. Chernau, Assistant County Attorney
(Steven L. Micas, County Attorney, on brief),
for appellee.
Raymond L. Lawless was convicted of a misdemeanor and fined
$1,000 under §§ 21.1-5(b) and 21.1-8(c) of the Code of
Chesterfield County for violating two conditions of a conditional
use permit governing the operation of a landfill. The conditions
that Lawless violated required him to cease all landfill
activities and file a closure plan within thirty days because of
exposed waste, leachate being discharged offsite, and inadequate
buffer zones between the lawfill and adjacent properties.
Lawless contends on appeal that the trial court erred by refusing
to sustain his motion to dismiss on the ground that he had been
previously convicted of the same offenses.
We hold that the provisions of § 21.1-5(b)(1) of the
Chesterfield Code, which provides that each day's failure to
comply with the conditional use permit constitutes a separate
offense, violates Dillon's Rule. Therefore, Chesterfield County
had no authority to adopt a provision in its zoning ordinance
that each day's violation would be treated as a separate offense.
Because Lawless had previously been convicted of a misdemeanor
on the same facts for violating the conditions of the use permit,
we hold that the trial court erred in not dismissing the charges.
Thus, we reverse Lawless's conviction.
On July 25, 1984, the Chesterfield County Board of
Supervisors granted Lawless a conditional use permit to operate a
landfill for a period of five years on 7.2 acres of real estate
in Chesterfield County. The Board amended the permit on March 8,
1989, and set forth several conditions. Condition number one
required Lawless to cease "all landfilling activity" on the
property. Condition number two required Lawless to file closure
plans within thirty days of the Board's amendment to the permit.
The amendment required Lawless to clean up and close the
landfill once the plans were submitted and approved.
In October 1992, Chesterfield County charged Lawless with
violating §§ 21.1-5(5) and 21.1-8(c) of the Chesterfield County
Code, alleging failure to comply with conditions one and two of
the March 1989 amendment to the special use permit. Lawless was
convicted of a misdemeanor and fined for violating conditions one
and two.
In July 1993, on the same facts, the County again charged
Lawless under §§ 21.1-5(b) and 21.1-8(c) for violating conditions
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one and two of the March 1989 amendment. The dispositive issue
is the validity of § 21.1-5(b) of the Chesterfield Code,
providing that each day's violation is a separate offense.
The only witness at trial was Donna McClurg, a zoning
inspector for Chesterfield County. McClurg testified that
Lawless had not submitted the plan required under condition two
within thirty days after the March 8, 1989, Board meeting and
that the current charge was identical to the October 1992 charge
on which Lawless had been convicted. She further testified that
the landfill was in the same condition as it was in 1989 and that
the only basis for the current charge was Lawless's failure to
file closure plans within thirty days of the March 8, 1989,
amendment to the permit.
Lawless submitted a written motion to dismiss. The trial
court overruled the motion to dismiss, found Lawless guilty, and
imposed a $1,000 fine.
Section 21.1-5(b)(1) of the Chesterfield County Code
provides that
[a]ny person who violates any of the
provisions of this chapter . . . shall be
deemed guilty of a misdemeanor and upon
conviction thereof, shall be fined not less
than ten dollars ($10.00) and not more than
one thousand ($1,000.00). Each day such
violation shall continue shall be a separate
offense, and upon conviction thereof, shall
be fined not less than ten dollars ($10.00)
and not more than one thousand ($1,000.00)
for each separate day on which [such]
violation occurs.
Lawless asserts that § 21.1-5(b), by providing that each day a
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violation exists constitutes a separate offense, exceeds the
authority granted localities under Code § 15.1-491(e) to impose
criminal penalties for zoning ordinance violations.
In Virginia, the boards of supervisors of the counties do
not have broad general authority to adopt whatever ordinance they
deem appropriate or desirable. The power of a county, like that
of a municipal corporation, is controlled by Dillon's Rule, which
authorizes the locality to exercise those powers or adopt
ordinances that the legislature expressly authorizes by statute
or that are conferred by necessary implication. Gordon v. Board
of Supervisors of Fairfax County, 207 Va. 827, 832, 153 S.E.2d
270, 274 (1967). Dillon's Rule and its corollary provide that
municipal and county governments have only those powers that the
legislature expressly grants, those necessarily or fairly implied
therefrom, and those that are essential and indispensable. See
id.; City of Richmond v. Board of Supervisors of Henrico County,
199 Va. 679, 684-85, 101 S.E.2d 641, 644-45 (1958). "[T]he
Dillon Rule is applicable to determine in the first instance,
from express words or by implication, whether a power exists at
all. If the power cannot be found, the inquiry is at an end."
Commonwealth v. County Board of Arlington County, 217 Va. 558,
575, 232 S.E.2d 30, 41 (1977).
We look to Title § 15.1 of the Code to determine whether the
legislature, when it passed the enabling legislation that allowed
localities to adopt zoning ordinances, empowered the counties,
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expressly or by necessary implication or as an essential power to
enforce zoning ordinances, to prosecute an individual for a
separate misdemeanor for each day's failure to comply.
Code § 15.1-491(e) does not expressly grant such power to the
locality.
We must determine, therefore, whether the power to make each
day's violation a separate offense can be "necessarily or fairly
implied" from the express powers granted under the Code. City of
Richmond v. Confrere Club of Richmond, Virginia, Inc., 239 Va.
77, 79, 387 S.E.2d 471, 473 (1990). "If there is any reasonable
doubt whether legislative power exists, that doubt must be
resolved against the local governing body." Id. at 79-80, 387
S.E.2d at 473.
Code § 15.1-491, the enabling legislation granting
localities the power to enact zoning ordinances, sets forth a
list of "matters" upon which localities may adopt "reasonable
regulations and provisions." With respect to enforcement,
§ 15.1-491 provides that
A zoning ordinance may include . . .
reasonable regulations and provisions
* * * * * * *
(e) For the imposition of penalties upon
conviction of any violation of the zoning
ordinance. Any such violation shall be a
misdemeanor punishable by a fine of not less
than $10 nor more than $1,000.
Code § 15.1-491(e). Additionally, localities may enforce
compliance with their zoning ordinances under Code § 15.1-491(d)
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by seeking injunctions, abatements, or other appropriate legal
actions or proceedings. See Code § 15.1-499.
In addition to the criminal sanctions and other means of
enforcement, Code § 15.1-499.1 provides that localities may
"adopt an ordinance which establishes a uniform schedule of civil
penalties for violations of specified provisions of the zoning
ordinance." Significantly, Code § 15.1-499.1 expressly provides
that localities may impose civil sanctions for specified
continuing violations on a day-to-day basis, but limits the total
amount of liability in each case to $3,000:
Each day during which the violation is found
to have existed shall constitute a separate
offense. However, specified violations
arising from the same operative set of facts
shall not be charged more frequently than
once in any ten-day period, and a series of
specified violations arising from the same
operative set of facts shall not result in
civil penalties which exceed a total of
$3,000.
Id. Furthermore, Code § 15.1-499.1 requires localities to elect
between pursuing civil sanctions or criminal prosecution for
particular violations.
Designation of a particular zoning ordinance
violation for a civil penalty pursuant to
this section shall be in lieu of criminal
sanctions, and except for any violation
resulting in injury to persons, such
designation shall preclude the prosecution of
a violation as a criminal misdemeanor.
Id. (emphasis added).
Under the Chesterfield County Zoning Code, according to the
position taken by Chesterfield County, the County may prosecute
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continuing zoning violations as separate misdemeanors and may
impose fines up to $1000 for each day the violation continues.
The Code contains no limitation upon the number of prosecutions
the County can pursue or the cumulative amount of fines resulting
from the prosecutions. Thus, the County argues that it may
impose criminal sanctions for each day a violation exists,
despite the Code's limitation on the frequency and cumulative
amount of civil sanctions that may be imposed.
We hold that Code § 15.1-491(e) does not authorize a
locality to adopt a zoning ordinance that makes each day's
violation a separate misdemeanor. "[T]he primary objective of
statutory construction is to ascertain and give effect to
legislative intent. A related principle is that the plain,
obvious, and rational meaning of a statute is always to be
preferred to any curious, narrow or strained construction."
Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338
(1983).
Code § 15.1-491(e) is silent on the issue whether each day's
violation may be considered a separate misdemeanor. Thus, before
Chesterfield County may include such a provision, the power to
punish criminally for each day's violation must be necessarily or
fairly implied from the enabling legislation, or it must be an
essential and indispensable provision necessary to the
enforcement of zoning ordinances.
The General Assembly, in enacting Code § 15.1-491(e), did
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not expressly grant to the locality the power to punish
criminally each day's continuing violation of a zoning ordinance.
We find that such power is neither necessarily implied by statute
nor indispensable to the enforcement of a zoning code. In fact,
by remaining silent on the issue of continuing criminal
sanctions, while expressly authorizing civil sanctions for each
day's violation, the Code evinces legislative intent to preclude
treatment of each day's violation as a separate misdemeanor.
Moreover, to interpret Code § 15.1-491(e) to permit
prosecution for each day's violation without limitation on the
cumulative amount of fines would blur the distinction between
Code §§ 15.1-491(e) and 15.1-499.1 and would render meaningless
the $3,000 and ten-day limitations on civil penalties under
Code § 15.1-499.1. See Shull v. Commonwealth, 16 Va. App. 667,
669, 431 S.E.2d 924, 925 (1993) (stating that a statute should
not "be construed so that it leads to absurd results"), aff'd,
247 Va. 161, 440 S.E.2d 133 (1994). We will not imply a grant of
power from the legislature's silence. We will not imply a grant
of power to punish more severely and more frequently for a
criminal violation than for civil penalties, which the
legislature has expressly limited. Furthermore, it is not
essential or indispensable to a locality's ability to enforce
compliance with its zoning code that the locality have the
authority to make each day's continued violation a criminal
offense. By providing in Code § 15.1-499 that a locality may
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"restrain[], correct[], or abate[] as the case may be [a
violation] by injunction or other appropriate proceeding," the
locality has a broad range of enforcement options, including
injunctions with contempt power and the authority to recover the
costs of the locality's abatement of the problem. Thus, we hold
that in enacting Code § 15.1-491(e), the General Assembly did not
intend to grant localities the power to prosecute criminally a
zoning violation for each day the violation exists. See Granny's
Cottage, Inc. v. Town of Occoquan, 3 Va. App. 577, 583, 352
S.E.2d 10, 14 (1987).
Accordingly, because Code § 15.1-491(e) does not grant
localities such power, that provision of § 21.1-5(b)(1) of the
Chesterfield County Code violates Dillon's Rule and is void.
Because Lawless had previously been convicted on these same facts
for a violation under § 21.1-5(b)(1), Lawless's conviction is
reversed and dismissed.
Reversed and dismissed.
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