Present: All the Justices
REUBEN L. BLANTON, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 000277 January 12, 2001
AMELIA COUNTY, ET AL.
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
I.
In this appeal, we consider whether ordinances enacted by
a county's board of supervisors contravene Code § 1-13.17,
which prohibits the enactment of ordinances that are
inconsistent with the laws of this Commonwealth.
II.
A.
Appellants, Reuben L. Blanton, L. L. Covington, Lois N.
Hall, David L. Foley, Jack E. Bulls, Grub Hill Farm, Inc.,
Hoot Owl Hollow Farms, and Little Patrick Farms, Inc.,
(collectively, the plaintiffs), filed a bill of complaint for
declaratory judgment and injunctive relief against Amelia
County, the Board of Supervisors of Amelia County, and Philip
T. Vannoorbeeck, who serves as the County Administrator and
Zoning Administrator (collectively, the County). The
litigants entered into the following stipulations of fact
which are relevant to our disposition of this appeal.
B.
Blanton, Covington, Hall, Foley, and Bulls are residents
of Amelia County who engage in farming activities. Grub Hill
Farm, Inc., a Virginia corporation, Little Patrick Farms,
Inc., a Virginia corporation, and Hoot Owl Hollow Farms, a
Virginia partnership, are business entities which own and
lease farmland in Amelia County.
The State Health Commissioner has issued "biosolids
use/treatment works operation permits" which authorize
Blanton, Bulls, Foley, and Hoot Owl Hollow Farms to use
biosolids upon their respective farmlands. The remaining
plaintiffs, with the exception of Grub Hill Farm, have
submitted applications to the State Health Commissioner for
permits which would authorize them to apply biosolids on
farmlands that they own or lease. Additionally, Blanton has
an application pending before the State Health Commissioner
which, if granted, would permit him to use biosolids on
additional farmland owned by him. Plaintiff Grub Hill Farm
intends to file an application for the land use of biosolids
to its farmland "in the near future." *
*
We have concerns whether all the plaintiffs have standing
to challenge the County's ordinances. See generally Mosher
Steel v. Teig, 229 Va. 95, 100-01, 327 S.E.2d 87, 91-92
(1985); Cupp v. Board of Supervisors, 227 Va. 580, 589-90, 318
S.E.2d 407, 411-12 (1984); Fairfax County v. Southland Corp.,
224 Va. 514, 519-21, 297 S.E.2d 718, 720-21 (1982). However,
since it is clear from the record that plaintiffs Blanton,
Foley, Bulls, and Hoot Owl Hollow Farms do have standing to
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Biosolids, which are a type of sewage sludge, are
delivered and applied free of charge by authorized applicators
to farmland which has been approved by the State Health
Commissioner for such application. Farmers who have received
permits to use biosolids have reduced their expenditures for
fertilizer and lime.
In 1999, the Board of Supervisors of the County of Amelia
had numerous discussions and public meetings pertaining to the
use of biosolids. After conducting public hearings, the Board
of Supervisors adopted two ordinances that banned the use of
biosolids in Amelia County. One ordinance is entitled, "A
Zoning Ordinance Banning the Placement of Biosolids in Any
Zoning District." The Board of Supervisors adopted this
zoning ordinance because the Board determined that
"the spreading, placement or disposal of human waste
sludge or industrial sludge on land in Amelia County
. . . constitute[s] a nuisance and further . . .
constitute[s] a hazard to the health, safety and
general welfare of the inhabitants of said county
and . . . constitute[s] a danger of pollution of the
waters of the county. The Board finds that public
necessity, convenience, general welfare and good
zoning practices warrant the adoption of this
Ordinance banning the land application of
biosolids."
The other ordinance is entitled, "An Ordinance Banning
the Placement of Biosolids on Any Land in the County." When
challenge the County's ordinances, we need not determine
whether the remaining plaintiffs have the requisite standing.
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adopting this ordinance, the Board of Supervisors, exercising
its police powers, concluded that
"the spreading, placement or disposal of human waste
sludge or industrial sludge on land in Amelia County
. . . constitute[s] a nuisance and further . . .
constitute[s] a hazard to the health, safety and
general welfare of the inhabitants of said county
and . . . constitute[s] a danger of pollution of the
waters of the county."
The ordinances became effective upon adoption on March
17, 1999, and are currently in effect. The ordinances
prohibit Blanton, Bulls, Foley, or Hoot Owl Hollow Farms from
using biosolids on their farmland even though they have valid
permits authorizing such use.
C.
After the litigants filed the above-referenced
stipulations in the circuit court, the litigants filed motions
for summary judgment. The plaintiffs asked that the court
enter summary judgment on their behalf and asserted, among
other things, that the County's ordinances are inconsistent
with state law in violation of Code § 1-13.17. In their
motion for summary judgment, the defendants argued that as a
matter of law the County has "the right and authority to ban
the land application of sewage sludge." The circuit court
granted the County's motion and entered a judgment on behalf
of the County. The plaintiffs appeal.
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III.
A.
Code § 1-13.17 states:
"When the council or authorities of any city or
town, or any corporation, board, or number of
persons, are authorized to make ordinances, bylaws,
rules, regulations or orders, it shall be understood
that the same must not be inconsistent with the
Constitution and laws of the United States or of
this Commonwealth."
Code § 32.1-164.5 governs the land application,
marketing, and distribution of sewage sludge. This statute
states in relevant part:
"A. No person shall contract or propose to
contract, with the owner of a sewage treatment
works, to land apply, market or distribute sewage
sludge in the Commonwealth, nor shall any person
land apply, market or distribute sewage sludge in
the Commonwealth without a current Virginia
Pollution Abatement Permit from the State Water
Control Board or a current permit from the State
Health Commissioner authorizing land application,
marketing or distribution of sewage sludge and
specifying the location or locations, and the terms
and conditions of such land application, marketing
or distribution.
"B. The Board of Health, with the assistance
of the Departments of Environmental Quality and
Conservation and Recreation, shall promulgate
regulations to ensure that (i) sewage sludge
permitted for land application, marketing or
distribution is properly treated or stabilized, (ii)
land application, marketing and distribution of
sewage sludge is performed in a manner that will
protect public health and the environment, and (iii)
the escape, flow or discharge of sewage sludge into
state waters, in a manner that would cause pollution
of state waters, as those terms are defined in
§ 62.1-44.3, will be prevented.
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"C. Regulations promulgated by the Board of
Health, with the assistance of the Departments of
Environmental Quality and Conservation and
Recreation pursuant to subsection B of this section,
shall include:
"1. Requirements and procedures for the
issuance and amendment of permits as required by
this section;
"2. Procedures for amending land application
permits to include additional application sites and
sewage sludge types;
"3. Standards for treatment or stabilization
of sewage sludge prior to land application,
marketing or distribution;
"4. Requirements for determining the
suitability of land application sites and facilities
used in land application, marketing or distribution
of sewage sludge;
"5. Required procedures for land application,
marketing and distribution of sewage sludge;
"6. Requirements for sampling, analysis,
record keeping and reporting in connection with land
application, marketing and distribution of sewage
sludge;
"7. Provisions for notification of local
governing bodies to ensure compliance with §§ 32.1-
164.2 and 62.1-44.15:3;
"8. Conditions where a nutrient management
plan approved by the Department of Conservation and
Recreation may be required.
"D. The Board of Health shall adopt
regulations in accordance with this section not
later than October 1, 1994. The Board of Health may
adopt, as final, proposed regulations that were the
subject of public notice and for which one or more
public hearings or informational meetings were held
in accordance with the Administrative Process Act
(§ 9-6.14:1 et seq.) after July 1, 1993, and prior
to September 30, 1994.
"E. The Board may adopt regulations
prescribing a reasonable fee not to exceed $2,500 to
be charged for the direct and indirect costs
associated with the processing of an application to
issue, reissue, amend or modify any permit to land
apply, distribute or market sewage sludge pursuant
to this section.
. . . .
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"G. Any permit, certificate or authorization
for the land application, marketing or distribution
of sewage sludge issued prior to October 1, 1994,
shall remain in effect for the remainder of the term
specified in such permit, certificate or
authorization. Such permits, certificates and
authorizations may be amended in accordance with the
Administrative Process Act (9-6.14:1 et seq.). Any
amendment after the adoption of the regulations
specified in this section shall be in accordance
with such regulations."
The State Board of Health, as directed by Code § 32.1-
164.5, promulgated Biosolids Use Regulations. See 12 VAC 5-
585-10, et seq. These Regulations define "biosolids" as:
"[A] sewage sludge that has received an established
treatment for required pathogen control and is
treated or managed to reduce vector attraction to a
satisfactory level and contains acceptable levels of
pollutants, such that it is acceptable for use for
land application, marketing or distribution . . . ."
The Regulations define "land application" as:
"[T]he distribution of either treated wastewater of
acceptable quality, referred to as effluent, or
supernatant from biosolids use facilities, or
stabilized sewage sludge of acceptable quality,
referred to as biosolids, upon, or insertion into,
the land with a uniform application rate for the
purpose of utilization, assimilation or pollutant
removal. Bulk disposal of stabilized sludge in a
confined area, such as landfills, is not land
application. Sites approved for land application of
biosolids or supernatant in accordance with this
chapter are not considered to be treatment works."
B.
The plaintiffs argue that the County's ordinances are
unenforceable because they are inconsistent with state law.
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Continuing, the plaintiffs assert that the General Assembly
has authorized the State Board of Health to regulate the land
application of biosolids and that the County may not enact
ordinances which ban the use of biosolids in the County.
Responding, the County asserts that its ordinances are
not inconsistent with state law. The County says that Code
§ 32.1-164.5, which authorizes the land application of
biosolids in certain prescribed circumstances, does not limit
the County's "role . . . in the field of sludge disposal and
regulation." The County also asserts that Code § 32.1-
164.5(A) is prohibitory in nature and does not preclude the
County from banning the land application of biosolids.
Continuing, the County argues that the Biosolids Use
Regulations, promulgated by the State Board of Health,
"demonstrate the unequivocal policy of the Commonwealth that
localities are to continue to exercise their usual control in
the field of land use. Nowhere in the state regulations does
[the State Board of Health] prohibit, attempt to prohibit, or
otherwise indicate that either it or the General Assembly
intended to prohibit local bans on the land application of
biosolids." We disagree with the County's contentions.
In King v. County of Arlington, 195 Va. 1084, 81 S.E.2d
587 (1954), we discussed the principles that we must apply
when considering whether a local ordinance is in conflict with
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the public policy of this Commonwealth as embodied in its
statutes. We stated:
"It is, of course, fundamental that local
ordinances must conform to and not be in conflict
with the public policy of the State as embodied in
its statutes. Indeed, that principle is embodied in
our statutes which require that local ordinances
must 'not be inconsistent with' the state law.
[Code § 1-13(17).]
"But, 'The mere fact that the state, in the
exercise of the police power, has made certain
regulations does not prohibit a municipality from
exacting additional requirements. So long as there
is no conflict between the two, and the requirements
of the municipal bylaw are not in themselves
pernicious, as being unreasonable or discriminatory,
both will stand. The fact that an ordinance
enlarges upon the provisions of a statute by
requiring more than the statute requires creates no
conflict therewith, unless the statute limits the
requirement for all cases to its own prescription.
Thus, where both an ordinance and a statute are
prohibitory and the only difference between them is
that the ordinance goes further in its prohibition,
but not counter to the prohibition under the
statute, and the municipality does not attempt to
authorize by the ordinance what the legislature has
forbidden or forbid what the legislature has
expressly licensed, authorized, or required, there
is nothing contradictory between the provisions of
the statute and the ordinance because of which they
cannot coexist and be effective. Unless legislative
provisions are contradictory in the sense that they
cannot coexist, they are not deemed inconsistent
because of mere lack of uniformity in detail.'
"If both the statute and the ordinance can
stand together and be given effect, it is the duty
of the courts to harmonize them and not nullify the
ordinance."
Id. at 1090-91, 81 S.E.2d at 591 (citations omitted). We
restated these principles in Wayside Restaurant v. Virginia
Beach, 215 Va. 231, 234, 208 S.E.2d 51, 53-54 (1974). See
9
also Trible v. Bland, 250 Va. 20, 24, 458 S.E.2d 297, 299
(1995); City of Norfolk v. Tiny House, 222 Va. 414, 421, 281
S.E.2d 836, 840 (1981); City of Lynchburg v. Dominion
Theatres, 175 Va. 35, 42, 7 S.E.2d 157, 160 (1940).
Applying these principles, we hold that the County's
ordinances are inconsistent with Code § 32.1-164.5 and the
Biosolids Use Regulations promulgated by the State Board of
Health. As we have clearly and repeatedly stated, a local
government may not "forbid what the legislature has expressly
licensed, authorized, or required." The General Assembly, by
its enactment of Code § 32.1-164.5, has expressly authorized
the land application of biosolids conditioned upon the
issuance of a permit.
The General Assembly has also directed that the State
Board of Health, with the assistance of the Departments of
Environmental Quality and Conservation and Recreation,
promulgate the requirements and procedures for the issuance
and amendment of permits. Code § 32.1-164.5(C) also
enumerates, among other things, certain requirements and
conditions which must be contained in the regulations that
govern the land application of biosolids in this Commonwealth.
The County's ordinances are inconsistent with Code § 32.1-
164.5 and the Biosolids Use Regulations because the ordinances
forbid certain plaintiffs from using biosolids on their
10
farmland even though those plaintiffs have obtained licenses
to use biosolids pursuant to the statutory and regulatory
scheme established by the General Assembly.
It is true that the Biosolids Use Regulations promulgated
by the State Board of Health contemplate that local
governments will have some involvement in the field of
biosolids use regulation. For example, the Biosolids Use
Regulations require that "[c]onformance to local land use
zoning and planning should be resolved between the local
government" and the holder of a permit which authorizes the
permittee to use biosolids for land application. 12 VAC 5-
585-260. Additionally, Regulation 12 VAC 5-585-620, which
governs "[m]inimum information required for completion of a
biosolids management plan utilizing land application,"
requires the applicant to comply with "local government zoning
and applicable ordinances." Code § 32.1-165.4 and the
Biosolids Use Regulations promulgated pursuant to this statute
do not prohibit a local government from enacting ordinances
which may affect the land application of biosolids. However,
local ordinances and requirements must not be inconsistent
with Code § 32.1-164.5 or the Biosolids Use Regulations.
The County, relying upon our decision in Dail v. York
County, 259 Va. 577, 528 S.E.2d 447 (2000), asserts that its
ordinances do not conflict with the Biosolids Use Regulations
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because such regulations do not have "the force and effect of
law." The County's argument is without merit.
It is true, as the County asserts, that we held in Dail
that the provisions of a challenged ordinance were not invalid
because that ordinance purportedly conflicted with the "best
management practices promulgated by the State Forester" which
did not have "the force and effect of law." Id. at 585, 528
S.E.2d at 451. Unlike the State Forester's best management
practices that we considered in Dail, the provisions of Code
§ 32.1-164.5, as well as the Biosolids Use Regulations,
constitute enforceable laws of this Commonwealth.
For the reasons stated above, we will enter a declaration
that the County's ordinances, enacted pursuant to the County's
police power and zoning power, are void and unenforceable
because both ordinances are inconsistent with Code § 32.1-
164.5 and the Biosolids Use Regulations promulgated pursuant
to that statute. We will also reverse the judgment of the
circuit court and enter a final judgment on behalf of the
plaintiffs.
Reversed and final judgment.
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