Sinclair v. New Cingular Wireless PCS, LLC

• Decision Date: 13 January 2012
• Docket Number: Record No. 101831.
• Parties: Kent SINCLAIR v. NEW CINGULAR WIRELESS PCS, LLC, et al.
• Court: Virginia Supreme Court

283 Va. 198

720 S.E.2d 543

Kent SINCLAIR

v.NEW CINGULAR WIRELESS PCS, LLC, et al.

Record No. 101831.

Supreme Court of Virginia.

Jan. 13, 2012.

William D. Dolan, III, Tyson Corner, (David R. Lasso; Michael W. Robinson, Tyson Corner; Mona S.K. Haar; Venable, Tyson Corner, on brief), for appellant.

Greg Kampter, Deputy County Attorney (Larry W. Davis, County Attorney, on brief), for appellees Albermarle County Board of Supervisors, Albermarle County Planning Commission, County of Albermarle and Mark Graham.

John L. Walker, III, Richmond (Valerie W. Long, Charlottesville; Samuel T. Towell; Williams Mullen, Charlottesville, on brief), for appellees New Cingular Wireless, PCS, LLC and Joan C. Eledge.

Present: All the Justices.

OPINION BY Justice WILLIAM C. MIMS.

In this appeal, we consider whether an Albemarle County zoning ordinance governing construction on slopes within the county conflicts with statutory law or exceeds the powers delegated to the county by the General Assembly, in violation of the Dillon Rule.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Kent Sinclair and Joan C. Elledge own adjacent residential parcels in Albemarle County. New Cingular Wireless PCS, LLC (“New Cingular”) contracted with Elledge to install a 103–foot cellular transmission tower on her parcel. The steep topography of the parcel brings it within the scope of Albemarle County Code § 18–4.2 (“the Ordinance”), which restricts construction on land with slopes of 25 percent or more (“a Critical Slope”).

Under Albemarle County Code § 18–4.2.5(a) (“the Waiver Provision”), the planning commission is authorized to grant a waiver from the restrictions otherwise imposed by the Ordinance after making certain findings or imposing conditions it deems necessary to protect the public health, safety, or welfare and to ensure compliance with the intent and purpose of the Ordinance. ¹ An appeal from the decision of the planning commission lies to the board of supervisors only if the waiver is granted subject to conditions objectionable to the applicant or is denied. Albemarle County Code § 18–4.2.5(a)(5). The Ordinance makes no provision for appeals by third parties, such as owners of adjoining parcels who believe themselves to be aggrieved by a decision of the planning commission to grant a waiver.

Elledge and New Cingular filed an application for a waiver as provided by the Waiver Provision. Sinclair opposed the application throughout the administrative staff review process and two public hearings. Nevertheless, the planning commission approved the application in February 2010.

Sinclair then filed a complaint in the circuit court seeking a declaratory judgment that (1) the Waiver Provision is invalid because it conflicts with the statutory scheme governing planning and zoning set forth in Title 15.2 of the Code of Virginia and (2) the county exceeded the power delegated to it by the General Assembly in violation of the Dillon Rule because its procedure for considering waiver applications is not authorized by state law.² In particular, he asserted that the only departures from a zoning ordinance permitted by state law are variances, defined by Code § 15.2–2201, and zoning modifications, provided for in Code § 15.2–2286(A)(4). Under Code § 15.2–2312, a variance may only be approved by the board of zoning appeals and only upon a finding that criteria set forth in Code § 15.2–2309(2) have been met.³ Under Code § 15.2–2286(A)(4), zoning modifications may only be granted by the zoning administrator and only upon a finding that identical criteria have been met. Thus, whether the waiver is a variance or a zoning modification, the Waiver Provision irreconcilably conflicts with state law because it permits waivers to be granted by the planning commission, rather than the board of zoning appeals or zoning administrator, and without a finding that the criteria in Code § 15.2–2309(2) have been met.

Sinclair also asserted that the Waiver Provision unlawfully circumvented his right to judicial review. Under Code § 15.2–2311(A), any person aggrieved by an adverse decision of the zoning administrator concerning the grant or denial of a zoning modification may appeal to the board of zoning appeals. Under Code § 15.2–2314, any person aggrieved by the decision of the board of zoning appeals, whether on an appeal from a decision of the zoning administrator concerning a zoning modification or from the board's grant or denial of a variance, may petition the circuit court for a writ of certiorari to review the board's decision. Because the Waiver Provision provided no right of appeal to aggrieved parties and particularly no judicial review in the circuit court, it again conflicted with state law.⁴

Sinclair and the Defendants filed competing motions for summary judgment. After a hearing, the circuit court determined that the waivers allowed by the Waiver Provision are not variances within the meaning of Code § 15.2–2201. Therefore, Code § 15.2–2312 did not reserve consideration of waiver applications to the board of zoning appeals and the criteria to be considered in granting or denying variances imposed by Code § 15.2–2309(2) did not apply. The court also ruled that the Ordinance's delegation to the planning commission of the decision to grant or deny waiver applications was within the broad grant of powers delegated to the county under Code §§ 15.2–2280 and 15.2–2286. Accordingly, it held the Waiver Provision did not conflict with state law and the county acted pursuant to power delegated to it by the General Assembly. The court therefore granted the Defendants' motion for summary judgment. We awarded Sinclair this appeal.

II. ANALYSIS

The circuit court's interpretation of the Ordinance and state law presents a legal question, which we review de novo. Jones v. Williams, 280 Va. 635, 638, 701 S.E.2d 405, 406 (2010). Localities have “no element of sovereignty” and are agencies created by the Commonwealth. Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010) (quoting Whiting v. Town of West Point, 88 Va. 905, 906, 14 S.E. 698, 699 (1892)) (internal quotation marks omitted). Accordingly, when a statute enacted by the General Assembly conflicts with an ordinance enacted by a local governing body, the statute must prevail. Covel v. Town of Vienna, 280 Va. 151, 162, 694 S.E.2d 609, 616 (2010).

Moreover, local governing bodies “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., 279 Va. at 417, 690 S.E.2d at 88 (quoting Board of Zoning Appeals v. Board of Supervisors, 276 Va. 550, 553–54, 666 S.E.2d 315, 317 (2008) (internal quotation marks omitted)). This principle, known as the Dillon Rule, is a rule of strict construction: “[i]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body.” Board of Supervisors v. Reed's Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995). There is no presumption that an ordinance is valid; if no delegation from the legislature can be found to authorize the enactment of an ordinance, it is void. Marble Techs., Inc., 279 Va. at 416–17, 690 S.E.2d at 88. Only where a delegation is found and “the question is whether [the delegated power] has been exercised properly, [may] the ‘reasonable selection of method’ rule ... be applicable, [whereupon] the inquiry is directed to whether there may be implied the authority to execute the power in the particular manner chosen.” Id. at 417 n. 10, 690 S.E.2d at 88 n. 10 (internal alterations omitted).

Sinclair first asserts that the Waiver Provision is void because the Ordinance prohibits construction on Critical Slopes. Because a landowner may not lawfully erect a structure on a parcel with a Critical Slope without obtaining a waiver, he argues, a waiver is in reality a variance or zoning modification and the criteria set forth in Code §§ 15.2–2309(2) and 15.2–2286(A)(4) must be met. We disagree.

A variance “allows a property owner to do what is otherwise not allowed under the ordinance.” Bell v. City Council, 224 Va. 490, 496, 297 S.E.2d 810, 813–14 (1982). But where “the property may be developed in a way consistent with the ordinance, but only with approval of the [locality] after specified conditions are met,” a variance is not necessary. Id. at 496, 297 S.E.2d at 814. Here, the Ordinance allows construction, provided that the landowner applies for the county's prior approval. The application process allows the county to review the proposed construction to ensure it will not precipitate the adverse effects it enacted the Ordinance to avoid, or to impose any conditions it determines to be necessary to ameliorate such adverse effects.⁵ If the proposed construction does not precipitate such effects or if conditions may be imposed to ameliorate them, the construction will be allowed.

In Bell, we determined that when proposed construction is permitted by ordinance, subject to prior application to and approval by the local government, the approval was not a variance but a special exception. 224 Va. at 496, 297 S.E.2d at 814. The General Assembly has delegated to localities the authority to provide for “the granting of special exceptions under suitable regulations and safeguards” in a zoning ordinance. Code § 15.2–2286(A)(3). Moreover, Code § 15.2–2288.1 expressly permits the use of the special exception procedure for steep slope development.

Unlike variances, special exceptions are not required to be reviewed for compliance with the criteria set forth in Code §§ 15.2–2309(2) and 15.2–2286(A)(4). Accordingly, we reject Sinclair's argument that the Waiver Provision conflicts with state law because it does not require consideration of those criteria before a waiver application is approved.⁶

Sinclair next asserts that the procedure for reviewing waiver...