Board of Supervisors v. Countryside Investment Co.

Present:   Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
           Kinser, JJ., and Poff, Senior Justice

BOARD OF SUPERVISORS
OF AUGUSTA COUNTY, ET AL.
                      OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990031               November 5, 1999

COUNTRYSIDE INVESTMENT COMPANY, L.C.

            FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                   Duncan M. Byrd, Jr., Judge

     In this appeal, we consider whether certain provisions in

a county's subdivision ordinance violate the Dillon Rule.

     The facts relevant to our disposition of this appeal are

not in dispute.   Countryside Investment Company, L.C.

(Countryside Investment), is the contract purchaser of a

parcel of land consisting of approximately 140 acres located

in Augusta County.   The parcel was given an R-10 residential

zoning classification under the Augusta County Zoning

Ordinance in effect in 1973.   This ordinance, which

established minimum lot size and minimum floor space

requirements, provided for a minimum lot area of 9,000 square

feet for property having an R-10 zoning classification.

     In 1995, the Augusta County Board of Supervisors enacted

a new zoning ordinance which prescribed a minimum lot area

requirement of 12,000 square feet.   Pursuant to the terms of

the new ordinance, the parcel at issue in this appeal enjoyed

the benefit of a "grandfather" clause which retained the
minimum lot area requirement of 9,000 square feet for lots

which might be subdivided within the parcel until the year

2006.

        In September 1997, Countryside Investment submitted to

the Augusta County Department of Community Development a

master plan for a proposed subdivision of the parcel which

would contain approximately 427 residential lots.    The

Department reviewed the master plan and concluded that the

plan complied with the technical requirements of the County's

Subdivision Ordinance.    The Augusta County Planning Commission

reviewed the master plan and unanimously recommended approval

by the Board of Supervisors.

        The Board discussed the master plan during several

meetings.    The Board also considered comments from the public

and evidence about the impact that the proposed subdivision

would have upon the County's water and sewer capacity, public

school division, transportation capacities, drainage, and

adjacent neighborhoods.

        At a meeting in November 1997, the Board tentatively

denied approval of the master plan.    The Board enumerated

several reasons for its tentative denial:    (1) "a subdivision

of this size located in an area that is predominantly rural in

character should, consistent with good planning practice,

anticipate, account for and accommodate some of the needs for


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non-residential community-type facilities [such as] . . .

sites for religious institutions, passive and active

recreational facilities, and day-care centers"; (2) "the

overall density" of the subdivision and "its potential

significant impact on public facilities and public utilities

in the northern sector of Augusta County, should not exceed a

figure of about two residences per acre, or approximately 270

single-family residences for the entire tract"; (3) some of

the property may not be suitable for residential development

and; the "current proposal to construct 427 residences . . .

would result in an increase in population that cannot be

readily accommodated by the existing public facilities and

utilities serving [that] area."

     The Board, in an attempt to modify the master plan,

recommended that Countryside Development:   increase the size

of the residential lots; create a "number of large lots of

varying sizes suitable for the construction of community-type

facilities such as churches, nursery schools, and/or day care

centers"; set aside portions of the property "which are least

suitable for development as open space designed to preserve

natural areas where the residents can engage in passive and

active leisure and recreational activities"; and devote "more

space, if necessary, to adequately deal with storm water

drainage and detention."


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        Countryside Investment initiated this proceeding against

the Board and Augusta County (collectively the Board) in the

circuit court pursuant to Code § 15.2-2260, seeking judicial

review of the Board's disapproval of the preliminary master

plan.       The Board filed responsive pleadings, the parties

stipulated certain evidence, and the circuit court conducted

an ore tenus hearing.

        The circuit court ruled, among other things, that §§ 21-6

and -7 of the Augusta County Subdivision Ordinance, upon which

the Board relied when it tentatively denied the master plan,

violated the Dillon Rule because those sections were not

authorized by the enabling legislation in Code §§ 15.2-2241

and -2242.      The court entered a decree which ordered approval

of the master plan, and enjoined the Board from taking any

action inconsistent with the decree.      The Board appeals.

        Code § 15.2-2240, which is a part of the Virginia Land

Subdivision and Development Act, states that "[t]he governing

body of every locality shall adopt an ordinance to assure the

orderly subdivision of land and its development." 1     Code

§ 15.2-2241, which prescribes the mandatory provisions which

must be included in a subdivision ordinance enacted by a

governing body, states in relevant part:


        1
       The Virginia Land Subdivision and Development Act
consists of Code §§ 15.2-2240 through -2279.

                                    4
          "A subdivision ordinance shall include
     reasonable regulations and provisions that apply to
     or provide:
          . . . .
          "3. For adequate provisions for drainage and
     flood control and other public purposes, and for
     light and air, and for identifying soil
     characteristics; . . . ."

     The Board, purportedly relying upon Code § 15.2-2241,

enacted the Augusta County Subdivision Ordinance which

contained the following provisions pertinent to our resolution

of this appeal:

     "§ 21-6.
          "A. All lots shall be of sufficient size,
     shape and dimension to meet all the [zoning]
     requirements of . . . this Code.
          "B. Size and shape of all lots shall be
     subject to approval of the Board of Supervisors. In
     no case shall the area or dimensions be less than
     that required by Chapter 25 or by approved proffered
     conditions applicable to any zoning district.
     "§ 21-7.
          "If in the opinion of the Board of Supervisors
     any tract of land is unsuitable for subdivision, it
     shall not be subdivided. A tract shall be deemed
     unsuitable for subdivision if adequate provision
     cannot be made for any public purpose, including,
     but not limited to: drainage and flood control,
     protection of light and air, and the preservation of
     a rural environment which is also conducive to a
     diverse agricultural, industrial, commercial and
     residential economy."

     The Board argues that the circuit court erred by holding

that §§ 21-6 and -7 of the Subdivision Ordinance are void

because they violate the Dillon Rule.   Continuing, the Board

states that when "the General Assembly has delegated the

state's police power, the locality is not required to have


                               5
specific authority for every provision in its ordinance.

Considerable discretion is left to the local government in

such matters."   The Board also asserts that even if specific

authority for §§ 21-6 and -7 is necessary, such authority does

exist.   Responding, Countryside Investment asserts that even

though the power of subdivision control is a delegation of the

State's police power to a local governing body, such authority

is subject to statutorily prescribed limitations; §§ 21-6 and

-7 of Augusta County Subdivision Ordinance exceed those

limitations and, thus, violate the Dillon Rule.   We agree with

Countryside Investment.

     We have held that the General Assembly, in providing for

local control of land subdivision, delegated to each locality

a portion of the police power of this Commonwealth.    National

Realty Corp. v. City of Virginia Beach, 209 Va. 172, 174-75,

163 S.E.2d 154, 156 (1968); Bd. of Supervisors v. Georgetown

Land Co., 204 Va. 380, 383, 131 S.E.2d 290, 292 (1963).

However, we have also recognized that "[t]he power of a

municipality, unlike that of the State legislature, must be

exercised pursuant to an express grant."   National Realty

Corp., 209 Va. at 175, 163 S.E.2d at 156; see also Bd. of

Supervisors v. Reed's Landing Corp., 250 Va. 397, 400, 463

S.E.2d 668, 669 (1995); Hylton Enterprises v. Bd. of

Supervisors, 220 Va. 435, 440, 258 S.E.2d 577, 581 (1979).


                                6
     We stated in City of Chesapeake v. Gardner Enterprises,

253 Va. 243, 246, 482 S.E.2d 812, 814 (1997), that

          "[t]he Dillon Rule of strict construction
     controls our determination of the powers of local
     governing bodies. This rule provides that municipal
     corporations have 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)."

We specifically discussed the application of the Dillon Rule

to counties in Bd. of Supervisors v. Horne, 216 Va. 113, 117,

215 S.E.2d 453, 455-56 (1975):

          "In Virginia the powers of boards of
     supervisors are fixed by statute and are limited to
     those conferred expressly or by necessary
     implication. Gordon v. Fairfax County, 207 Va. 827,
     832, 153 S.E.2d 270, 274 (1967); Johnson v.
     Goochland County, 206 Va. 235, 237, 142 S.E.2d 501,
     502 (1965). This rule is a corollary to Dillon's
     Rule that municipal corporations have only those
     powers expressly granted, those necessarily or
     fairly implied therefrom, and those that are
     essential and indispensable. City of Richmond v.
     County Board, 199 Va. 679, 684-85, 101 S.E.2d 641,
     644-45 (1958)."

     In National Realty Corp., supra, we considered whether an

ordinance which imposed a fee for the examination and approval

of final subdivision plats and made payment of the fee a

prerequisite to the recording of the plat by the clerk of the


                                 7
circuit court contravened the Virginia Land Subdivision and

Development Act.   In National Realty Corp., we acknowledged,

as we recognize here, that the General Assembly, in providing

for local control of land subdivision, delegated a portion of

its police power to local governing bodies.   Provisions in a

local subdivision ordinance, however, must derive power from

an authorization from the General Assembly.   209 Va. at 177,

163 S.E.2d at 157-58.    Since the local governing body was not

empowered to impose the fee, we held the ordinance invalid.

Id., 163 S.E.2d at 158.

     We hold that §§ 21-6 and -7 of the County's Subdivision

Ordinance are void because the General Assembly did not

authorize the Board to enact the challenged requirements in a

subdivision ordinance.    Neither Code § 15.2-2241, which

prescribes the mandatory provisions which must be included in

a subdivision ordinance, nor Code § 15.2-2242, which

prescribes optional provisions that may be included in a

subdivision ordinance, authorizes a governing body to enact

provisions in a subdivision ordinance which specify the size

and shapes of lots to be subdivided.   Additionally, neither

Code § 15.2-2241 nor -2242 authorizes a governing body to




                                 8
prohibit a subdivision of property if the proposed subdivision

is not conducive to the preservation of a rural environment. 2

     The Board asserts that it has considerable discretion

when deciding what to include in a subdivision ordinance.       We

disagree.    As we have already stated, pursuant to the strict

construction required by the Dillon Rule, the Board does not

have unfettered discretion when deciding what matters it may

include in its subdivision ordinance.    Rather, the Board must

include those requisites which are mandated in Code § 15.2-

2241 and may, at the Board's discretion, include the optional

provisions of a subdivision ordinance contained in Code

§ 15.2-2242.    Additionally, the Board is entitled to exercise

discretion only to the extent permitted by Code §§ 15.2-2241

and -2242.     See Helmick v. Town of Warrenton, 254 Va. 225,

232-33, 492 S.E.2d 113, 117 (1997).    The Board is not,

however, permitted to ignore the requisites contained in Code

§§ 15.2-2241 and -2242 and, under the guise of a subdivision

ordinance, enact standards which would effectively permit it




     2
       Our holding does not impair the County's power to enact
zoning ordinances which prescribe minimum lot area
requirements, Code § 15.2-2280, or standards which would
permit the County to consider the rural character of a
community when making zoning decisions, Code § 15.2-2283;
Byrum v. Board of Supervisors, 217 Va. 37, 39, 225 S.E.2d 369,
371 (1976).



                                  9
to rezone property in a manner inconsistent with the uses

permitted by the property's zoning classification.

     We find no merit in the Board's argument that Code

§ 15.2-2200 authorizes the challenged provisions in the

County's Subdivision Ordinance.      Code § 15.2-2200 states:

          "This chapter is intended to encourage
     localities to improve the public health, safety,
     convenience and welfare of its citizens and to plan
     for the future development of communities to the end
     that transportation systems be carefully planned;
     that new community centers be developed with
     adequate highway, utility, health, educational, and
     recreational facilities; that the need for mineral
     resources and the needs of agriculture, industry and
     business be recognized in future growth; that
     residential areas be provided with healthy
     surroundings for family life; that agricultural and
     forestal land be preserved; and that the growth of
     the community be consonant with the efficient and
     economical use of public funds."

This statute, a general declaration of the General Assembly's

intent for Chapter 22 of Title 15.2 concerning planning,

subdivision of land, and zoning, does not confer upon the

Board the power to enact a subdivision ordinance which is more

expansive than the enumerated requisites contained in Code

§§ 15.2-2241 and -2242.

     In view of the foregoing, we do not consider the Board's

remaining assignments of error or Countryside Investment's

assignments of cross-error.    Accordingly, we will affirm the

decree of the circuit court.

                                                          Affirmed.


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