Opinion
Case No. CL-2010-0005765
04-12-2011
Blakeley, et al., v. Board of Supervisors of Fairfax County, Virginia
Craig J. Blakeley Kathleen M. McDermott Pamela Pelto, Esquire County Attorney's Office
MARCUS P. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKCRT
RICHARD J. JAMBORSKY
JACK R. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL R. McWEENY
GAYLORD L. FINCH. JR.
STANLEY P. KLEIN
RETIRED JUDGES
April 12, 2011
Dear Mr, Blakeley, Ms. McDermott and Ms. Pelto:
This matter came before the Court on the Complaint filed by Craig J. Blakeley and Kathleen M. McDermott ("Blakeley") seeking Declaratory Judgment against the Fairfax County Board of Supervisors ("County") relating to the County's grant of a special exception under Zoning Ordinance § 9-610 for waiver of minimum lot width requirements to property belonging to Ana Comejo ("Comejo special exception"). The parties filed cross motions for summary judgment and conceded that no material facts were in dispute. After considering the briefs and arguments, the Court grants Blakeley's Motion for Summary Judgment as to Counts I & II and denies the County's Motion for Summary Judgment as to Counts I & II. Because this ruling is dispositive, Blakeley's remaining claims for declaratory relief Counts III-VI, are denied as moot.
Legal Analysis
I. Dillon's Rule
Count I: The County's procedure of waiving minimum lot width requirements by special exception violates Dillon's Rule.
Count D: The Cornejo special exception violated Dillon's Rule.
The first question presented is whether the County violated Dillon's Rule by amending Zoning Ordinance § 9-610 to allow by special exception waivers of minimum lot width requirements when Virginia Code § 15.2-2201 defines special exceptions as special uses not permitted in a particular districts and variances as reasonable deviations from provisions regulating the size or area of land.
Under Dillon's Rule, "[m]unicipal 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." Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417 (2010) (quoting Bd, of Zoning Appeals v. Bd. of Supervisors, 276 Va. 550, 552-53 (2008)). The County does not contend that granting lot width waivers is an "essential" or "indispensable" power, thus the issue is whether the County exceeded the powers it was "expressly granted" or were "necessarily or fairly implied." See id.
Virginia Code § 15.2-2286(A)(1) empowers the County to enact zoning ordinances for granting both special exceptions and variances. "A zoning ordinance may include, among other things, reasonable regulations and provisions . .. [f]or variances or special exceptions, as defined in § 15.2-2201, to the general regulations in any district." Va. Code Ann. § 15.2-2286(A)(1), Section 15.2-2201 establishes the following definitions:
"Special exception" means a special use, that is a use not permitted in a particular district except by a special use permit granted under the provisions of this chapter and any zoning ordinances adopted herewith. "'Variance" means, in the application of a zoning ordinance, a reasonable deviation from those provisions regulating the size or area of a lot or parcel of land, or the size, area, bulk or location of a building or structure when the strict application of the ordinance would result in unnecessary or unreasonable hardship to the property owner, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the intended spirit and purpose of the ordinance, and would result in substantial justice being
done. It shall not include a change in use which change shall be accomplished by a rezoning or by a conditional zoning. § 15.2-2201 (emphasis added).Thus, § 15.2-2201 plainly designates special exceptions as governing land use and variations as governing deviations in lot size and area.
On February 26, 2007, the County amended Zoning Ordinance § 9-610 to authorize the County to approve, by special exception, the waiver of the minimum lot width requirements in residential districts. As amended, § 9-610 bypasses the statutorily defined requirements for variances by reclassifying a minimum lot width waiver as a special exception. Indeed, Code § 15.2-2309(2) grants the Board of Zoning Appeals ("BZA"), and not the local government, the power to authorize variances. Along with other restrictions on the BZA's authority, the Virginia Code mandates that the BZA shall not authorize a variance unless "the strict application of the ordinance would produce undue hardship relating to the property." § 15,2-2309(2)(a), Moreover, the Virginia Supreme Court has held that "the BZA has authority to grant variances only to avoid an unconstitutional result." Cochran v. Bd. of Zoning Appeals, 267 Va. 756, 764 (2004).
Section 9-610 is inconsistent with this statutory scheme. By simply reclassifying the administrative action as a special exception, the County assumed the BZA's authority to grant lot width waivers as variances and, thus, bypassed the specific statutory and judicial requirements for granting a variance. This reclassification is at odds with the statutory definitions outlining the scope of the County's authority. The width of lots directly relates to the "size or area" of a parcel of land. Minimizing lot widths, does not change the "use" of the land, only the size of the parcel. A deviation in size without a change in use falls squarely within the General Assembly's definition of a variance in § 15.2-2201. The County may not contravene legislative intent by simply ignoring the plain, unambiguous language of statutory definitions. Under the County's enabling authority, the deviation in the size of a lot is defined as a variance. Thus, by proceeding to grant a lot width waiver as a special exception, the County acted without a statutory grant of authority.
The Virginia Supreme Court's holding in Bell v. City Council of Charlottesville, 224 Va. 490 (1982) does not change this result. In Bell, the plaintiff brought a similar Dillon's Rule challenge to the county's authority to grant special exceptions for density, height, and set-back requirements. Id. at 493. The Court recognized that "[t]he state enabling legislation does distinguish between variances and special exceptions," but ruled that "[n]othing in the enabling act prevents the alteration of setback and height requirements as part of the issuance of a special exception." Id. at 496.
However, due to subsequent legislative action, Bell no longer binds this Court. Although the Virginia Code's statutory definitions have virtually remained unchanged since Bell, in 1987, five years after the Bell holding, the General Assembly added to § 15.2-2286(A)(1) a specific requirement that local governments use the statutory definitions of variance and special exception when adopting ordinances. Act of Feb. 16, 1987, ch. 8, § 15.1-491(a), 1987 Va. Acts 10, 11. When the Supreme Court decided Bell, there was no similar specific reference to the statutory definition section.
This Court cannot interpret the 1987 amendment as adding no meaningful change or clarification to the statute, but instead the Court must "assume that [the General Assembly's] amendments to the law are purposeful and not unnecessary or vain." Cape Henry Towers, Inc. v. Nat'l Gypsum Co., 229 Va. 596, 600 (1985). The court must further "presume that the General Assembly, when enacting new laws, is fully aware of the state of existing law relating to the same general subject matter." Gillespie v. Commonwealth, 272 Va. 753, 758 (2006). Accordingly, the Court concludes that the General Assembly's 1987 amendment represented a knowing step away from the Bell decision not to strictly enforce the statutory definitions and, thus, supersedes the Bell holding with a specific requirement that local governments adhere to the statutory definitions of variance and special exception in enacting local ordinances.
The County failed to adhere to this specific requirement by granting lot width waivers as special exceptions, contrary to the statutory definitions in § 15.2-2201. Consequently, the County exceeded the enabling authority and violated Dillon's Rule.
EI. Pipestem Lots
Count III: The County's procedure of not applying § 2-406 violates § 9-610(4). Count TV: The County's grant of the Cornejo special exception violated § 9-610(4).
Count V: The County's procedure of not applying § 2-406 violates § 9-001. Count VI: The County's grant of the Cornejo special exception violated § 9-001.
Blakeley argues on additional grounds that the County's procedure of not applying § 2-406 to special exceptions for lot width waivers violates Ordinances § 9-610(4) and § 9-001 and, thus, is ultra vires and invalid. Because the Court ruled that the County cannot approve by special exception the waiver of minimum lot width requirements, the question whether the County can approve a § 9-610 special exception in conjunction with a pipestem lot is moot.
Conclusion
The County exceeded the enabling authority and violated Dillon's Rule by granting lot width waivers without meeting the requirements for granting a variance. Section 9-610 as it pertains to waiving minimum lot width requirements by special exceptions is null and void, and the Cornejo special exception is declared invalid. Accordingly, Summary Judgment is granted for Blakeley on Counts I & II. Because this ruling is dispositive, Blakeley's remaining claims for declaratory relief on Counts III-VT are moot. An appropriate Order will be entered this date.
Sincerely,
Leslie M. Alden
FINAL ORDER
THIS MATTER came before the Court on January 7, 2011 on Cross-Motions for Summary Judgment;
IT APPEARING to the Court that, for the reasons set forth in the Court's letter opinion entered on this date and incorporated herein, that Plaintiffs' Motion for Summary Judgment should be granted and Defendant's Motion for Summary Judgment should be denied. It is, therefore
ADJUDGED, ORDERED and DECREED that Plaintiffs' Motion for Summary Judgment is hereby GRANTED and Defendant's Motion for Summary Judgment is hereby DENIED.
ENTERED this 12 day of April, 2011 ________________
Judge Leslie M. Alden