Jennings v. Bd. of Supervisors of Northumberland County.

• Citation: 281 Va. 511,708 S.E.2d 841
• Decision Date: 21 April 2011
• Docket Number: Record No. 100068.
• Parties: John L. JENNINGS, t/a Jennings Boatyard, Inc.v.BOARD OF SUPERVISORS OF NORTHUMBERLAND COUNTY.
• Court: Virginia Supreme Court

281 Va. 511

708 S.E.2d 841

John L. JENNINGS, t/a Jennings Boatyard, Inc.

v.BOARD OF SUPERVISORS OF NORTHUMBERLAND COUNTY.

Record No. 100068.

Supreme Court of Virginia.

April 21, 2011.

Roger G. Hopper, Saluda, for appellant.W. Leslie Kilduff, Jr. (Burke & Kilduff, on brief), for appellee.Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and CARRICO and KOONTZ, S.JJ.OPINION BY Chief Justice CYNTHIA D. KINSER.

In this appeal, a landowner with riparian rights who operates a commercial marina/boatyard challenges a locality's zoning authority to regulate the construction of additional mooring slips and accompanying piers that would lie beyond the mean low-water mark of a tidal, navigable body of water. The landowner also challenges as void the locality's special exception permit ordinance, claiming that the ordinance lacks adequate standards to guide the governing body's decision to grant or deny a special exception permit. Because we conclude that the circuit court did not err in denying the landowner's request for declaratory relief on either ground, we will affirm the circuit court's judgment.

MATERIAL FACTS AND PROCEEDINGS

The facts essential to this appeal are undisputed. The appellant, John L. Jennings, owns approximately 12.4 acres of real property in Northumberland County (the County), part of which fronts Cockrell's Creek, a tidal, navigable tributary of the Chesapeake Bay. On this property, Jennings operates a business known as “Jennings Boatyard Marina” (the Marina), “a commercial marina/boatyard with 45 mooring slips and accompanying piers.” In March 2005, Jennings engaged a marine design construction company to develop plans and submit necessary applications for 46 additional mooring slips with accompanying piers (the Project). The proposed slips would lie approximately 300 to 400 feet beyond the mean low-water mark of Cockrell's Creek. They are designed as “deep water slips” for sailboats.

Subsequently, the marine design construction company submitted a special exception permit application on Jennings' behalf. The County's Board of Supervisors (the Board) initially tabled the application, indicating that it wanted Jennings to obtain a riparian rights survey. After obtaining the survey, Jennings reduced the additional slips requested from 46 to 31 to accommodate riparian lines. After a public hearing on Jennings' application, the Board unanimously denied the special exception permit. In a letter to Jennings, the County's zoning administrator explained that the “Board felt that since there are currently three (3) marinas in the area, including [Jennings'], that have mooring slips available for boaters, there would be no justification to allow an expansion at this time.”

Jennings filed an action seeking declaratory relief against the Board. See Code §§ 8.01–184 and –186. Jennings alleged that only the Virginia Marine Resources Commission (VMRC) has authority to permit the placement of piers beyond the mean low-water mark and therefore the County lacked jurisdiction to regulate the Project through its special exception permit process. The Board answered, stating that it had authority to regulate beyond the mean low-water mark of the County's creeks and rivers.

Jennings moved for summary judgment, asserting that the County's zoning ordinances requiring a special exception permit for the expansion of the Marina are invalid and void ab initio. In ruling on that motion, the circuit court concluded that “title to land below [the] mean low[-]water [mark] is in the Commonwealth,” and that “the VMRC has the exclusive right to issue permits” authorizing use of that land. However, the court rejected Jennings' argument that Code § 28.2–1203(A)(5), which allows the construction of private noncommercial piers beyond the mean low-water mark without VMRC's authorization, carves out from VMRC's otherwise exclusive jurisdiction a locality's “sole grant of authority ... to zone in tidal[,] navigable waters.” The court instead reasoned that the “general grant of authority to zone land ... necessarily and fairly implie[s] that the County[,] in zoning upland for a marina/boatyard[,] has the authority to regulate ... piers and boat slips which are necessarily all part of the same use.” Thus, the circuit court concluded that Jennings' “proposed expansion of piers and slips may be constructed only pursuant to a permit from the VMRC, but [is also] subject to the Northumberland County Zoning Ordinance.” The circuit court, accordingly, denied Jennings' motion for summary judgment.

At a subsequent evidentiary hearing regarding the reasonableness of the Board's denial of Jennings' application for a special exemption permit, Jennings argued for the first time that the County's special exception permit ordinances, Northumberland Zoning Ordinance (NZO) §§ 148–95(A) and –138(A) and (B), are void for lack of any “objective criteria stated.” Jennings also reiterated that the Board lacked zoning authority over the Project because it would lie beyond the mean low-water mark. The Board disputed, inter alia, Jennings' argument that the County's ordinances are “inadequate.” ¹

In a letter opinion, the circuit court concluded that the Board's denial of Jennings' special exemption permit application “was not arbitrary, capricious and unreasonable.” ² Relying on Bollinger v. Board of Supervisors, 217 Va. 185, 187, 227 S.E.2d 682, 683 (1976), the court further concluded “that the [challenged ordinance] is not invalid for failure to state standards to be applied by the Board in the issuance of a special exception permit.” Accordingly, the circuit court entered an order denying the relief sought by Jennings. Jennings appeals from the circuit court's judgment.

ANALYSIS

The primary issue now before us is whether the County's zoning jurisdiction extends to the regulation of commercial piers and marinas to be constructed on bottomlands that lie beyond the mean low-water mark in the Commonwealth's tidal, navigable waters. Secondarily, we must decide whether the County's ordinance regulating the issuance of special exception permits is void for lack of adequate standards. Both issues are questions of law reviewed de novo by this Court. See Schefer v. City Council, 279 Va. 588, 592, 691 S.E.2d 778, 780 (2010); Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 416 & n. 9, 690 S.E.2d 84, 87 & n. 9 (2010).

“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.” Byrum v. Board of Supervisors, 217 Va. 37, 39, 225 S.E.2d 369, 371 (1976); accord National Mar. Union v. City of Norfolk, 202 Va. 672, 680, 119 S.E.2d 307, 312 (1961). Thus, a locality's zoning powers are “ ‘fixed by statute and are limited to those conferred expressly or by necessary implication.’ ” Board of Supervisors v. Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 613 (1999) (quoting Board of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975)). Localities have been delegated authority to include in their zoning ordinances “reasonable regulations and provisions” “[f]or the granting of special exceptions under suitable regulations and safeguards[.]” Code § 15.2–2286(A)(3). A governing body is also authorized to “reserve unto itself the right to issue such special exceptions,” “notwithstanding any other provisions of this article.” Id.

In Code § 15.2–2280, the General Assembly expressly granted localities the authority to zone “the territory under its jurisdiction.” This authority extends to “regulat[ing], restrict[ing], permit[ting], prohibit[ing], and determin[ing],” inter alia, “[t]he use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses” as well as “[t]he ... construction ... of structures [.]” Code § 15.2–2280(1) and (2). Thus, the County has express authority to regulate Jennings' Project in accordance with the requirements of the County's zoning ordinances if the bottomland in Cockrell's Creek that lies seaward of the mean low-water mark is “territory under [the County's] jurisdiction.”

It is undisputed that such bottomland in Cockrell's Creek that lies seaward of the mean low-water mark is “the property of the Commonwealth,” Code § 28.2–1200,³ and that “the limits or bounds” of Jennings' real property lying on Cockrell's Creek and his “rights and privileges ... extend to the mean low-water mark but no farther.” Code § 28.2–1202(A); Scott v. Burwell's Bay Improvement Ass'n, 281 Va. 704, ––––, 708 S.E.2d 858, 861–62 (2011) (this day decided). Also, neither party disputes VMRC's regulatory authority over the bottomland in Cockrell's Creek seaward of the mean low-water mark, see Scott, 281 Va. at ––––, 708 S.E.2d at 861–62, also described as “state-owned bottomlands,” Code § 28.2–101; see Code §§ 28.2–103, –1204, and –1205; or that the County's zoning authority over all “the territory under its jurisdiction” includes Jennings' real property, with its “rights and privileges ... extend[ing] to the mean low-water mark.” Code §§ 15.2–2280 and 28.2–1202(A). The dispute in this case concerns whether both the County and the VMRC enjoy concurrent regulatory authority over the Project to be constructed on state-owned bottomlands.

As Jennings notes, the statutory provisions pertaining to a locality's zoning authority, specifically Article 7, titled “Zoning,” in Chapter 22 of Title 15.2, provide no rule for determining what “territory” is “under [a locality's] jurisdiction” for purposes of zoning, with one exception.⁴ HOWEVER, COde § 15.2–3105 PROVIDES, IN PERtinent part, that

[t]he boundary of every locality bordering on the Chesapeake Bay, including its tidal tributaries (the Elizabeth River, among others), or the Atlantic Ocean shall embrace all wharves, piers, docks and other structures, except bridges and tunnels that have been or may...