Sinclair v. New Cingular Wireless PCS, LLC

• Decision Date: 13 January 2012
• Docket Number: Record No. 101831.
• Citation: 727 S.E.2d 40,283 Va. 567
• Parties: Kent SINCLAIR v. NEW CINGULAR WIRELESS PCS, LLC, et al.
• Court: Virginia Supreme Court

283 Va. 567

727 S.E.2d 40

Kent SINCLAIR

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

Record No. 101831.

Supreme Court of Virginia.

Jan. 13, 2012.^*

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

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

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

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”). The Ordinance includes subsection § 18–4.2.5(a) (“the Waiver Provision”), which sets forth the following detailed procedure for modifying or waiving the requirements of the Ordinance by an application to the planning commission:

1. Request. A developer or subdivider requesting a modification or waiver shall file a written request in accordance with section 32.3.10(d) of this chapter and identify and state how the request would satisfy one or more of the findings set forth in subsection 4.2.5(a)(3). If the request pertains to a modification or waiver of the prohibition of disturbing slopes of twenty-five (25) percent or greater (hereinafter, “critical slopes”), the request also shall state the reason for the modification or waiver, explaining how the modification or waiver, if granted, would address the rapid and/or large-scale movement of soil and rock, excessive stormwater run-off, siltation of natural and manmade bodies of water, loss of aesthetic resources, and, in the event of septic system failure, a greater travel distance of septic effluent (collectively referred to as the “public health, safety, and welfare factors”) that might otherwise result from the disturbance of critical slopes.

2. Consideration of recommendation; determination by county engineer. In reviewing a request for a modification or waiver, the commission shall consider the recommendation of the agent as to whether any of the findings set forth in subsection 4.2.5(a)(3) can be made by the commission. If the request pertains to a modification or waiver of the prohibition of disturbing critical slopes, the commission shall consider the determination by the county engineer as to whether the developer or subdivider will address each of the public health, safety and welfare factors so that the disturbance of critical slopes will not pose a threat to the public drinking water supplies and flood plain areas, and that soil erosion, sedimentation, water pollution and septic disposal issues will be mitigated to the satisfaction of the county engineer. The county engineer shall evaluate the potential for soil erosion, sedimentation and water pollution that might result from the disturbance of slopes of twenty-five (25) percent or greater in accordance with the current provisions of the Virginia Department of Transportation Drainage Manual, the Commonwealth of Virginia Erosion and Sediment Control Handbook and Virginia State Water Control Board best management practices, and where applicable, Chapter 17, Water Protection, of the Code.

3. Findings. The commission may grant a modification or waiver if it finds that the modification or waiver would not be detrimental to the public health, safety or welfare, to the orderly development of the area, or to adjacent properties; would not be contrary to sound engineering practices; and at least one of the following:

a. Strict application of the requirements of section 4.2 would not forward the purposes of this chapter or otherwise serve the public health, safety or welfare;

b. Alternatives proposed by the developer or subdivider would satisfy the intent and purposes of section 4.2 to at least an equivalent degree;

c. Due to the property's unusual size, topography, shape, location or other unusual conditions, excluding the proprietary interest of the developer or subdivider, prohibiting the disturbance of critical slopes would effectively prohibit or unreasonably restrict the use of the property or would result in significant degradation of the property or adjacent properties; or

d. Granting the modification or waiver would serve a public purpose of greater import than would be served by strict application of the regulations sought to be modified or waived.

4. Conditions. In granting a modification or waiver, the commission may impose conditions deemed necessary to protect the public health, safety or welfare and to insure that the development will be consistent with the intent and purposes of section 4.2.

5. Appeal. The board of supervisors shall consider a modification or waiver as follows:

a. The denial by the commission of a modification or waiver, or the approval of a modification or waiver by the commission with conditions objectionable to the developer or subdivider, may be appealed to the board of supervisors as an appeal of a denial of the plat, as provided in section 14–226 of the Code, or the site plan, as provided in section 32.4.2.7 or 32.4.3.9, to which the modification or waiver pertains. A modification or waiver considered by the commission in conjunction with an application for a special use permit shall be subject to review by the board of supervisors.

b. In considering a modification or waiver, the board may grant or deny the modification or waiver based upon the findings set forth in subsection 4.2.5(a)(3), amend any condition imposed by the commission, and impose any conditions it deems necessary for the reasons set forth in subsection 4.2.5(a)(4).

Albemarle County Code § 18–4.2.5(a).¹

Thus, under 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. 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. 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...