Could a Virginia county let landowners pull their land back out of a community development authority after it was created?

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

A House of Delegates member asked the Attorney General about a Virginia county's 2006 ordinance creating a community development authority (CDA), which included a provision letting the county's Board of Supervisors release or exclude land from the CDA district on request, both before and (in limited amounts) after the authority issued bonds. Under the CDA statute, landowners who petitioned for the authority's creation could waive their right to withdraw their signatures from the petition, and in this case all petitioning landowners, including an educational foundation that owned nearly two-thirds of the district's acreage, had waived that right so the county could adopt the ordinance without the usual thirty-day waiting period. The foundation later signed an agreement to have its land withdrawn from the district anyway, raising the question whether the county ever had authority to include a withdrawal mechanism in the ordinance in the first place.

The opinion concluded the county did not have that authority. Under Virginia's Dillon Rule, local governments possess only the powers the General Assembly has given them expressly or by necessary implication, and any doubt about whether a power exists must be resolved against the locality. The statutes governing CDA creation, §§ 15.2-5152 through 15.2-5158, addressed the process for forming an authority, including a landowner's right to withdraw a petition signature before the ordinance was adopted, but said nothing about withdrawing land after the authority already existed. Because the General Assembly never granted that specific power, the opinion concluded the county could not create it by ordinance, and any ordinance provision purporting to do so was an "ultra vires" act, void from the moment it was enacted.

Background and analysis (as of 2008)

The Dillon Rule, as applied in Virginia case law, requires a narrow, strict construction of any power a local government claims, resolving ambiguity against the existence of the power. The opinion walked through the CDA statute's petition and hearing procedure: a county could elect to consider CDA petitions under § 15.2-5152(C), landowners representing at least 51 percent of the district's land area or assessed value could petition under § 15.2-5153, and under § 15.2-5156 a public hearing was required before adoption, followed either by a 30-day window for petitioning landowners to withdraw their signatures or, if all landowners waived that right in writing, immediate adoption once the hearing requirement was satisfied. Nothing in that framework addressed what happened to a landowner's right to have their land included in (or removed from) the district once the authority had actually been formed. Applying prior Virginia Supreme Court decisions on ultra vires local action, the opinion concluded that because the power to permit post-formation withdrawal was neither expressly granted nor a necessary implication of the statute's terms, the county could not confer it on itself by ordinance, making the withdrawal provision void ab initio.

Citations and references

Statutes (as they stood in 2008):

• §§ 15.2-5152 to 15.2-5158, Virginia Water and Waste Authorities Act provisions governing community development authorities
• § 15.2-5152(C), a county's election to consider CDA petitions
• § 15.2-5153, landowner petition threshold (51 percent of land area or assessed value)
• § 15.2-5156, public hearing requirement and the pre-adoption signature-withdrawal procedure

Cases:

• County Bd. v. Brown, 229 Va. 341, 329 S.E.2d 468 (1985), powers of county boards of supervisors are fixed by statute and limited to those expressly or by necessary implication conferred
• Commonwealth v. County Bd., 217 Va. 558, 232 S.E.2d 30 (1977), the Dillon Rule determines in the first instance whether a power exists at all
• Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497, 522 S.E.2d 610 (1999), a county board's authority over ordinance content is bound by the statutes creating that authority

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-067-Cole.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

October 20, 2008

The Honorable Mark L. Cole
Member, House of Delegates
P.O. Box 6046
Fredericksburg, Virginia 22403
Dear Delegate Cole:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issue Presented
You ask whether a Virginia county is authorized to enact an ordinance creating a Community
Development Authority ("Authority") that permits the subsequent release or withdrawal of land from the
Authority district.
Response
It is my opinion that a Virginia county may not enact an ordinance creating an Authority that
permits the subsequent release or withdrawal of land from the Authority district.
Background
You advise that after publishing the notice and conducting a hearing as required by § 15.2-5156, a
Virginia county adopted an ordinance creating an Authority pursuant to § 15.2-5155. You state that the
ordinance was adopted on May 23, 2006 (the "Ordinance"). The second paragraph of the ordinance
establishes the boundaries of the Authority and provides that:
The Board of Supervisors, upon the request of the [Spotsylvania Harrison Road
Connector Community Development Authority (the "CDA")] or the Spotsylvania Mall
Company (the "Developer"), may, by resolution, release or exclude from the CDA district
(i) at any time before the issuance of the Bonds certain portions of land as long as at least
100 acres of land remain in the CDA district and (ii) after the issuance of the Bonds only
de minimis portions of land not to exceed approximately two acres.

You note that a locality must create an Authority according to §§ 15.2-5152 through 15.2-5158.
Further, you state that § 15.2-5152 appears to incorporate the requirement in § 15.2-5156 that an
Authority be created only upon the petition of owners of fifty-one percent of the land area or assessed
value of the tract at issue as set forth in § 15.2-5153. Finally, you observe that § 15.2-5156(B) provides
that if all of the petitioning landowners waive the right to withdraw their signatures from the petition, the
local governing body may adopt the Authority ordinance provided the body has complied with all other
requirements and provisions of law.
You note that the Ordinance represents the fact that all petitioning landowners for the proposed
Authority have waived the right to withdraw signatures from the petition in accordance with
§ 15.2-5156. You believe that such waiver implicitly assures compliance with the petition requirements
to create an Authority.
You further state that an educational foundation is the largest landowner of the petitioning
landowners within the proposed district. You represent that the foundation owns two tracts of land
totaling 316.15 acres of the proposed district, which is comprised of 523.822 acres. Accordingly, it is
your view that the educational foundation is a necessary landowner to meet the fifty-one percent land area
requirement within the proposed district. You emphasize that the foundation, along with all other
landowners, waived the right to withdraw their signatures from the petition. Thereby, you believe such
waiver permitted the local governing body to pass the Ordinance without waiting the required thirty-day
period from the public hearing.
You further advise that on January 31, 2008, the educational foundation signed an agreement (the
"Agreement") with the Authority requesting that its parcels be withdrawn from the Authority boundaries.
The Agreement, which you provide for review, is entitled "Agreement and Declaration of Restrictive
Covenants." You observe that the first paragraph of the Agreement modifies the Authority district
boundaries by excluding the foundation's property as requested by the Authority and the locality.
Therefore, your view is that the educational foundation, which owns more than fifty-one percent of the
land area in the Authority district, has withdrawn from the Authority although the foundation previously
waived such right. Your concern is that absent the authority to enact such a withdrawal provision in the
Ordinance creating the Authority, the Ordinance is void ab initio.
Applicable Law and Discussion
Article 6, Chapter 51 of Title 15.2, §§ 15.2-5152 through 15.2-5158, of the Virginia Water and
Waste Authorities Act ("Article 6"), governs community development authorities. Such authorities
typically are created to construct some particular improvement for a community. Section 15.2-5152(C)
provides that "[a]ny county may by ordinance elect to assume the power to consider petitions for the
creation of community development authorities in accordance with [Article 6]. A public hearing shall be
held on such ordinance."
Section 15.2-5153 provides that:
The owners of at least 51 percent of the land area or assessed value of land in the
following tracts may, by petitioning the locality or localities in which the tract is located,
propose the creation of a community development authority:
….

3. Any tract of any size in any country which has elected to consider such petitions
   pursuant to subsection C of § 15.2-5152. [Emphasis added.]
   Section 15.2-5156 provides that:
   A. An ordinance or resolution creating a community development authority shall not be
   adopted or approved until a public hearing has been held by the governing body on the
   question of its adoption or approval. Notice of the public hearing shall be published once
   a week for three successive weeks in a newspaper of general circulation within the
   locality. The petitioning landowners shall bear the expense of publishing the notice. The
   hearing shall not be held sooner than ten days after completion of publication of the
   notice.
   B. After the public hearing and before adoption of the ordinance or resolution, the
   local governing body shall mail a true copy of its proposed ordinance or resolution
   creating the development authority to the petitioning landowners or their attorney in fact.
   Unless waived in writing, any petitioning landowner shall have thirty days from mailing
   of the proposed ordinance or resolution in which to withdraw his signature from the
   petition in writing prior to the vote of the local governing body on such ordinance or
   resolution. If any signatures on the petition are so withdrawn, the local governing body
   may pass the proposed ordinance or resolution only upon certification by the petitioners
   that the petition continues to meet the requirements of § 15.2-5152. If all petitioning
   landowners waive the right to withdraw their signatures from the petition, the local
   governing body may adopt the ordinance or resolution upon compliance with the
   provisions of subsection A and any other applicable provisions of law.

The overriding goal of statutory interpretation is to discern and give effect to legislative intent.
6
Virginia long has followed and still adheres to the Dillon Rule of strict construction of statutory
provisions and its corollary that "[t]he powers of county boards of supervisors are fixed by statute and are
7
limited to those powers conferred expressly or by necessary implication." Additionally, the powers of
boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary
8
implication. "[T]he Dillon Rule is applicable to determine in the first instance, from express words or by
implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end." The
Dillon Rule requires a narrow interpretation of all powers conferred on local governments since they are
9
delegated powers.
Therefore, any doubt as to the existence of power must be resolved against the
10
locality.
The applicable rule of statutory construction requires that words be given their ordinary meaning,
11
given the context in which they are used in a statute. Section 15.2-5152(C) grants to counties the
authority to consider petitions for the creation of community development authorities. Should a county
elect to consider such a petition, § 15.2-5156(A) requires that a public hearing be held on the question of
adoption or approval of such an ordinance or resolution creating an Authority. Following the public
hearing, the county is required to: (1) mail the proposed ordinance or resolution to the petitioning
landowners; or (2) obtain from the petitioning landowners a written waiver of the right to withdraw their
signatures from the petition. When the petitioning landowners do not waive their right to withdraw, the
county must give such landowners thirty days from the mailing of the proposed ordinance or resolution to
withdraw their signatures before the proposed ordinance or resolution may be adopted. However, where
all of the petitioning landowners have waived their right to withdraw, the county may adopt the ordinance
creating an Authority upon compliance with § 15.2-5156(A).

"'The manifest intention of the legislature, clearly disclosed by its language, must be applied.'"
The General Assembly has not expressly granted to counties the statutory authority to permit petitioning
landowners to withdraw their signatures from the petition after adoption of the ordinance or resolution
creating the Authority. The Dillon Rule prevents a county from acting indirectly when it is not authorized
to do so by express statutory language. I cannot conclude that, by necessary implication, a county may
permit petitioning landowners to withdraw their signatures from a petition seeking formation of an
Authority subsequent to the adoption of the Authority by ordinance or resolution. I am required to
conclude that a county is not indirectly, by implication, authorized to permit such withdrawal.

Because local governments are subordinate creatures of the Commonwealth, they possess only
those powers conferred upon them by the General Assembly. An ultra vires act is one that is beyond the
powers conferred upon a county by law. Such acts are void ab initio, from the beginning. Because I
conclude that a county is not directly or "by necessary implication" authorized to enact an ordinance
permitting petitioning landowners to withdraw from an Authority once it has been created, I must also
conclude that enacting an ordinance containing such unauthorized provision is an ultra vires act.
Therefore, such an ordinance is void ab initio.

Footnotes:
6 City of Richmond v. Bd. of Supvrs., 199 Va. 679, 684-85, 101 S.E.2d 641, 644-45 (1958) (noting 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).
7 County Bd. v. Brown, 229 Va. 341, 344, 329 S.E.2d 468, 470 (1985).
8 Commonwealth v. County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).
9 See Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497, 522 S.E.2d 610 (1999) (holding that county board
of supervisors does not have unfettered authority to decide what matters to include in subdivision ordinance; must
include requirements mandated by Land Subdivision and Development Act, and may include optional provisions
contained in Act); Op. Va. Att'y Gen: 2002 at 77, 78; 1974-1975 at 403, 405.
10 2A EUGENE MCQUILLEN, THE LAW OF MUNICIPAL CORPORATIONS § 10.19, at 369 (3d ed. 1996); see also Op.
Va. Att'y Gen.: 2002 at 83, 84; 2000 at 75, 76.
11 Va. Beach v. Bd. of Supvrs., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993).

Conclusion
Accordingly, is my opinion that a Virginia county may not enact an ordinance creating an
Authority that permits the subsequent release or withdrawal of land from the Authority district.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell