Board of Sup'rs of Fairfax County v. Horne

• Decision Date: 13 June 1975
• Citation: 215 S.E.2d 453,216 Va. 113
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY et al. v. M. S. HORNE et al.
• Court: Virginia Supreme Court

Page 453

215 S.E.2d 453

216 Va. 113

BOARD OF SUPERVISORS OF FAIRFAX COUNTY et al. v.M. S. HORNE et al.

Supreme Court of Virginia.

June 13, 1975.

William E. Donnelly, III, Asst. County Atty., Robert H. Freilich, Kansas City, Mo. (Frederic Lee Ruck, County Atty., on brief), for appellants.

John T. Hazel, Jr., Donald C. Stevens, Marc E. Bettius, Fairfax (Francis A. McDermott, Randolph W. Church, Jr., Russell S. Rosenberger, Jr., Hazel, Beckhorn & Hanes, McCandlish, Lillard, Church & Best, Bettius & Langen, Fairfax, on briefs), for appellees.

Before I'ANSON, C.J., and HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

In this appeal we consider the validity of county ordinances prohibiting for a specified period of time the filing of applications for approval of site plans and preliminary subdivision plats.

On January 7, 1974, the Board of Supervisors of Fairfax County, pursuant to a resolution stating that 'emergency conditions' existed within the county because of 'unprecedented and rapid growth,' adopted an Interim Development Ordinance (IDO), on an emergency basis, by amending the County Zoning Ordinance to include the following:

' § 30--19 Interim Development Ordinance

'30--19.1 This Article shall be in full force and effect from the date of its enactment until June 30, 1975, the date established for the adoption of the complete official zoning map of the entire county.

'30--19.2 During the period while this Article is in full force and effect for all real property in Fairfax County:

'(A) No application shall be accepted for, nor any approval granted for, a special permit, a special exception, a site plan under the Fairfax County Zoning Ordinance of 1959as amended and revised, or a preliminary subdivision plat, except as provided in Section (C) of this Article.

'(B) Nothing contained in this Article shall be deemed to abrogate or annul any prior approval lawfully issued and in effect as of the date of enactment of this Article . . ..

'(C) * * *

2.No proposal for a public facility shall be subject to the provisions of Section (A) above.

'(D) No application for an amendment to the Zoning Ordinance of 1959as amended and revised on the date of adoption of this Article shall be accepted or considered by the Planning Commission or the Board of Supervisors during the period while this Article is in effect.'

The emergency ordinance was adopted without compliance with the statutory requirements for the enactment of either zoning ordinances or subdivision ordinances.

The purpose of the Ordinance was stated therein as follows:

'. . . to protect the comprehensive plan and the new Zoning Ordinance and Official Zoning Map thereof and to insure their implementation by hereby adopting, pursuant to the authority vested in the Board of Supervisors, reasonable interim legislation for a reasonable time during consideration of the aforesaid proposed comprehensive plan, zoning ordinance and official zoning map thereof, to protect the public interest and welfare and prevent a race of diligence between property owners and the County during consideration of the proposed comprehensive plan, zoning ordinance and official zoning map thereof, which would in many instances result in the establishment of a pattern of land use and development which would be inconsistent with the comprehensive plan and violate its basic intent and purpose and fail to protect the community and its general welfare.'

After complying with all statutory requirements for the enactment of a zoning ordinance the Board reenacted the IDO on March 4, 1974, the reenacted ordinance differing in no material respect from the emergency ordinance and confirming the effective period of the moratorium from January 7, 1974, through June 30, 1975.

After January 7, 1974, the appellees(Landowners) sought to develop their lands in accordance with existing zoning classifications.They submitted either site plans or preliminary subdivision plats which were rejected by the appropriate county official solely because of the IDO moratorium.The Landowners then initiated in the trial court against the Board and designated county officials (collectively, the Board) separate proceedings, subsequently consolidated, to have the ordinances declared invalid.

During the pendency of the litigation the Board amended IDO on June 24, 1974, to include the following provision:

'All areas of the County which are not specifically designated as critical to the current comprehensive replanning of the County, based on planning and environmental criteria, shall be exempted from the restrictions of Section (A) of this Article upon formal adoption of a land release map or maps, and criteria.'

The Board also adopted a land release map, effective July 1, 1974, which showed the areas of the county that were released or could be released, from the IDO restrictions.

In the trial court the Landowners not only challenged the Board's authority to enact the IDO, but also adduced evidence for the purpose of showing that, even if such an ordinance could legally be enacted, there was no factual justification for the legislation.The Board introduced evidence of its approval of a Planned Land Use System under which, among other things, a comprehensive plan and a comprehensive new zoning ordinance would be recommended, and evidence of the Board's concern that uses not conforming with the projected zoning classifications might become vested pending the preparation, consideration and enactment of the new legislation.

The uncontradicted evidence showed that at least 70 site plans and preliminary subdivision plats filed on or before January 7, 1974, were processed after that date; that 45 submitted after that date were rejected because of the IDO; and that 107 submitted after that date were accepted because of certain administrative guidelines adopted by the County staff from time to time to eliminate inequities.The evidence also showed that the possibility of enactment of the IDO became publicly known on February 5, 1973, upon approval of the Planned Land Use System, and that there was no significant increase in the filing of site plans and preliminary subdivision plats between that date and January 7, 1974, the effective date of the IDO.There was no evidence that the proposed new zoning ordinance would affect the Landowners or that any of them had submitted plans or plats in order to evade the provisions of the proposed new ordinance.

The trial court heard the evidence Ore tenus over a period of five days, beginning July 10, 1974.Near the close of the trial the trial court refused to permit the Board to raise as a defense, for the first time, the Landowners' failure to exhaust their administrative remedies, and the Board assigned no error to this ruling.

The trial court, by memorandum opinion filed August 12, 1974, concluded that the presumption of validity which attached to the emergency ordinance was rebutted by the evidence and that passage of that ordinance was arbitrary and capricious; that the Board had no express or implied authority to enact either the emergency ordinance or the March 4, 1974, ordinance, and the evidence did not disclose a necessity therefor; and that the legislation failed to comply with the uniformity requirement of zoning under Code§ 15.1--488 (Repl.Vol.1973).¹The Board appeals the final decree entered August 16, 1974, in which the trial court, after ruling that the emergency ordinance was null and void and that the regularly enacted ordinance was 'void insofar as it purports to prevent the acceptance and approval of preliminary subdivision plats and site plans,' ordered the Board to 'accept for filing preliminary plats of subdivision, final plats of subdivision and final site plans, and to process the same in a prompt manner. . . .'

The Board argues that enactment of the IDO was authorized either as a valid exercise of its police power or by express grant or necessary implication of the enabling statutes.

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).

The Commission on Constitutional Revision recommended inclusion of a provision to reverse Dillon's Rule as to cities and certain counties in order to relax the constraints on local government.Report of the Commission on Constitutional Revision(1969), at 228--231.This recommendation, however, was rejected by the General Assembly, and was not incorporated in the revised Constitution which became effective July 1, 1971.We must conclude, therefore, that, regardless of its fate in other jurisdictions, Dillon's Rule remains in effect in this state.Accordingly, the Board could not enact the IDO under its general police power.

We have long upheld, as a valid exercise of delegated police power, local zoning regulations enacted under state enabling legislation.SeeWest Brothers Brick Co. v. Alexandria, 169 Va. 271, 192 S.E. 881(1937).We have acknowledged the presumption of validity that attaches to zoning ordinances, as legislative enactments of the local governing body, Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d 390, 395(1959), a presumption, however, which we have held to be rebuttable.Bd. of Supervisors of Fairfax Co. v. Allman, 215 Va. 434, 211 S.E.2d 48(1975);Fairfax County v. Snell Corp., 214 Va. 655, 202 S.E.2d 889(1974).But in the present casewe are considering an ordinance which, though designated and adopted as a zoning...