Byrum v. Board of Sup'rs of Orange County

• Decision Date: 11 June 1976
• Docket Number: No. 750484,750484
• Parties: Barney L. BYRUM and Elizabeth Byrum v. BOARD OF SUPERVISORS OF ORANGE COUNTY et al. Record
• Court: Virginia Supreme Court

Page 369

225 S.E.2d 369

217 Va. 37

Barney L. BYRUM and Elizabeth Byrum v. BOARD OF SUPERVISORS OF ORANGE COUNTY et al.

Record No. 750484.

Supreme Court of Virginia.

June 11, 1976.

John C. Lowe, Charlottesville (Hartwell H. Gary, III, Lowe & Gordon, Ltd., Charlottesville, on brief), for appellants.

Ulysses P. Joyner, Jr., Orange (Georege H. Davis, Jr., Washington, Somerville, Moore & Joyner, Orange, on briefs), for appellees.

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

HARRISON, Justice.

This appeal by Barney L. Byrum and Elizabeth Byrum involves certain provisions of the Orange County zoning ordinance. Appellants claim that the Board of Supervisors of the county was without authority to deny them a conditional use permit for a mobile home park on their property. They further say that, assuming the ordinance does give such authority, it fails to provide any standards for judging whether a permit should be denied, and is therefore invalid and ineffectual as to them.

In 1968 Orange County adopted its zoning ordinance in accordance with the provisions of Virginia Code §§ 15.1--486 through 15.1--498. In its preamble the ordinance states that its adoption is 'for the purpose of promoting health, safety, order, prosperity, the conservation of natural and historic resources, and the general welfare requiring it . . ..' The county was divided into six districts (or zoning classifications), namely, agricultural, residential limited, residential general, light commercial, general commercial, and industrial. Appellants' property was zoned 'Agricultural District A', as was more than 90% Of the total land area of the county.

The ordinance in § 2--1 provides that in Agricultural District A any buildings to be erected or land to be used should be for one or more of the uses listed in thirteen enumerated categories.

Section 2--1--4 of the ordinance names mobile home or trailer parks among thirteen uses that 'may be permitted' in Agricultural District A upon the issuance of a conditional use permit by the Board of Supervisors.

Section 9--3--1 of the ordinance recites the permitted uses and provides that permits shall be subject to such conditions as the governing body deems necessary to carry out the intent of the ordinance. Section 9--3--2 provides guidelines to be used by the governing body in imposing conditions. ¹

While the Board has the right under § 2--1--14 of the ordinance to delegate to a Zoning Administrator its authority to issue use permits, and the right under § 9--3--1 of the ordinance to delegate to the Board of Zoning Appeals its authority to set conditions, the Board has never delegated its authority in these matters.

Byrum agrees that the ordinance gives to the Board the power to grant conditional use permits and to impose reasonable conditions, but argues that it does not give to the Board the power to deny a property owner a conditional use permit for a use permitted by § 2--1--14 of the ordinance.

There are certain general principles involved in zoning cases which we have too often stated to require extensive review. The governing body of a county in Virginia is authorized by statute to enact local zoning ordinances. Code § 15.1--486. Such a body is empowered to reserve unto itself the right to issue special exceptions or use permits. Code § 15.1--491(c). Zoning is a legislative power vested in the Commonwealth and delegated by it, in turn, to various local governments for the enactment of local zoning ordinances. The constitutionality of such ordinances is no longer questioned. Zoning ordinances must not be arbitrary and unreasonable, but if their reasonableness is fairly debatable they must be sustained. Local governing bodies, because of their knowledge of local conditions and the needs of their individual communities, are allowed wide discretion in the enactment and amendment of zoning ordinances. A court should not substitute its judgment for that of the local legislative body unless there has been a clear abuse of power.

In Maritime Union v. City of Norfolk, 202 Va. 672, 680--81, 119 S.E.2d 307, 313 (1961), we said:

'The courts, in passing on zoning ordinances, have firmly established the rule that where such ordinances grant discretionary power for their administration, there must be provided standards for the guidance of the administering authority. The rule is founded on the principle that there must be a uniform application of the regulations, so that the discretion versted by the ordinance will not be used arbitrarily, and so that the benefits of the discretion will not be bestowed on some and denied to others under like circumstances. (Citing cases)'

However, in the same case, we recognized a well-established exception to the rule just stated and quoted from Gorieb v. Fox, et al., 145 Va. 554, 563--564, 134 S.E. 914, 917 (1926), Aff'd, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927), where it was said:

'While the courts have held that, generally speaking, statutes and ordinances which vest arbitrary discretion in public officials, without prescribing a uniform rule of action, by which they shall be guided are unconstitutional and void, this rule is subject to a qualification, 'where it is difficult or impracticable to lay down a definite rule, or where the discretion relates to the administration of a police regulation, and is necessary to protect the public morals, health, safety and general welfare'.' 202 Va. at 681, 119 S.E. at 313.

In Civic Assoc. v. Chesterfield County, 215 Va. 399, 209 S.E.2d 925 (1974), this Court specifically recognized that when a legislative body reserves to itself the power to grant a use permit, its action on an application is a legislative function.

In City of Richmond v. Randall, 215 Va. 506, 511, 513--14, 211 S.E.2d 56, 60, 61--62 (1975), we said:

'The presumption of legislative validity attaches not only to zoning ordinances adopted by legislative bodies, but also to actions on applications for special use permits where legislative bodies are empowered by law to take such actions. ²

And here, too, the linchpin of the presumption is reasonableness. When a landowner whose special use permit has been denied shows that the existing zoning ordinance, as applied to his land, is invalid, and that the use he requested is reasonable, he has made a Prima facie showing that the legislative action denying his permit was unreasonable. . . .'

Counsel for appellants cites our decision and language in City of Winchester v. Glover, 199 Va. 70, 97 S.E.2d 661 (1957). In that case Glover was denied a permit to operate a gasoline service station under the provisions of an ordinance which authorized the city council to refuse to grant a permit if 'the public safety would be endangered by the filling station . . .'. On review we held that the operation of such a station was not an inherently dangerous business and that the council was attempting to exercise administrative powers under an ordinance which set forth no standards or rules of guidance. However, we further observed that, while 'a city council is empowered both to legislate and administrate, . . . in passing upon the permit . . . in question it was acting solely in an administrative capacity'. 199 Va. at 72, 97 S.E.2d at 663.

Reaffirming the reasons underlying our decisions in Maritime Union v. City of Norfolk, supra, Civic Assoc. v. Chesterfield County, supra, and City of Richmond v. Randall, supra, we again say that when the governing body of a county reserves unto itself the right to issue special exceptions or use permits, the issuance of such permits is a legislative function. To the extent that Glover is in conflict with these decisions and our holding in the case under review, Glover is expressly overruled.

In the Orange County ordinance now under consideration, provision is made in the article dealing with Agricultural District A for two use categories: Authorized uses and uses which May be permitted upon the issuance of a conditional use permit. These permissible uses include not only mobile home or trailer parks, but also such diverse uses as hog farms, kennels, cemeteries, refuse disposal sites, etc.

We attach significance to the use of the word 'may' in § 2--1--14 of the ordinance rather than 'shall' as used in § 2--1. While 'courts not infrequently construe 'may' as 'shall' or 'must' to the end that justice may not be the slave of grammar . . .', Black's Law Dictionary, 4th Ed., p. 1131, such a construction is not indicated in the instant case. We think it clear that the use of 'may' indicates an intent by the Board to reserve to itself a large measure of discretion as to whether a conditional use permit should be...