If a Virginia county's old subdivision ordinance went beyond what current state law authorizes, does the 1997 recodification of local-government law (Title 15.1 to Title 15.2) save the ordinance?

Plain-English summary

Botetourt County's subdivision ordinance has long included "suitability of land" provisions: rules that let the county's subdivision agent or planning commission reject a subdivision plat if the site is "not suitable for platting and development purposes of the kind proposed." When the County started examining whether those provisions exceeded the authority the General Assembly had actually granted to counties in the Land Subdivision and Development Act, the question came up: does the 1997 recodification of local-government law in Va. Code § 15.2-101(A) preserve the old ordinance even if its content exceeds current statutory authority?

Attorney General Bob McDonnell said no. Section 15.2-101(A) is a transition statute, it makes clear that the repeal of Title 15.1 did not retroactively invalidate things localities had done under the old statutes. It does not, however, convert pre-1997 ordinances into substantively legal ordinances if their content was never properly authorized. If Botetourt's "suitability of land" rules go further than what §§ 15.2-2240 through 15.2-2279 authorize today, the recodification is no defense.

The opinion is procedurally significant for county attorneys: a 2002 amendment of § 21-122 cannot be saved by appeal to 1997, and a 1958 enactment of § 21-64 doesn't carry forward statutory authority that was never explicit to begin with. The Dillon Rule, the foundational Virginia doctrine that requires localities to point to express or necessarily implied authority, controls.

Currency note

This opinion was issued in 2009. 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. The Land Subdivision and Development Act provisions (§§ 15.2-2240 to 15.2-2279) have been amended multiple times since 2009.

Background and statutory framework

Virginia's Land Subdivision and Development Act lives in Article 6 of Chapter 22 of Title 15.2. It sets out the optional and mandatory components of a county subdivision ordinance: things like plat requirements, public-improvement standards, escrow rules, and so on. The Virginia Supreme Court held in Bd. of Supvrs. v. Countryside Invest. Co. that counties do not have "unfettered authority to decide what matters to include in [a] subdivision ordinance." They must include the mandatory items the Act lists and may include only the optional items the Act allows.

Botetourt County's § 21-64, originally adopted in 1958, told the subdivision agent not to approve a plat if public-agency investigation determined that "in the best interest of the public the site is not suitable for platting and development purposes." In 2002 the County added § 21-122, which built in similar "suitability of land" criteria for the planning commission. The County Attorney's office concluded that those provisions probably exceeded what the Act now authorizes, and asked the AG whether § 15.2-101(A), the Title 15.1-to-15.2 transition statute, would save them anyway.

Section 15.2-101(A) reads: "The repeal of Title 15.1 effective as of December 1, 1997, shall not affect the powers of any locality with respect to any ordinance, resolution or by-law adopted and not repealed or rescinded prior to such date." The drafting question is what "powers" means there, whether it grandfathers the substantive content of pre-1997 ordinances, or only confirms that historical actions taken under Title 15.1 remained legally valid.

What the AG concluded, point by point

The 2002 amendment can't be grandfathered to 1997. Section 21-122 was adopted in 2002, after the December 1, 1997 effective date in § 15.2-101(A). On its face, it gets no benefit from a transition statute aimed at a pre-1997 effective date.

The 1958 enactment can't piggyback on a power that wasn't granted. Even though § 21-64 was adopted in 1958, the question isn't whether § 15.2-101(A) preserved its 1958 enactment as a procedural matter. The question is whether the substantive grant of subdivision power, then or now, ever authorized "suitability of land" provisions that veer outside the Act. If the answer is no, § 15.2-101(A) cannot create authority that was never delegated. The AG quoted the McQuillen treatise on municipal corporations and Commonwealth v. County Bd. for the Dillon Rule formulation: "If the power cannot be found, the inquiry is at an end."

What § 15.2-101(A) actually does. The AG reads it as a recodification-only protection: it ensures that things localities did under the repealed Title 15.1 (like adopting ordinances, issuing bonds, levying fees) remain legally valid notwithstanding that the underlying authority statute moved to Title 15.2. It does not freeze in place the substance of pre-1997 ordinances against future state-law changes. "[T]he recodification and repeal of a particular statute that formerly authorized an action does not invalidate the actions taken by localities under a former grant of power." But once a substantive grant changes, the locality has to bring its ordinance into line.

The Dillon Rule governs. Virginia is a Dillon Rule state. Local governments exercise only those powers expressly granted, necessarily implied from those, or essential and indispensable. The AG cited Nat'l Realty, Horne, and Commonwealth v. County Bd. for that proposition and emphasized that doubts about local power are resolved against the locality.

What this meant at the time

For the Botetourt County Attorney (as of 2009)

The opinion confirmed your assessment: amending or repealing the "suitability of land" provisions to bring them into line with the Land Subdivision and Development Act was the right move, and you did not have a § 15.2-101(A) defense to keep the old language. Counsel for other counties with similar provisions could not rely on a grandfathering theory either.

For developers and landowners (as of 2009)

If a Virginia locality cited an old ordinance to reject your subdivision plat on grounds the current statute does not authorize, this opinion supported a Dillon Rule challenge. The 1997 recodification did not protect the locality from having to show express or necessarily implied statutory authority for whatever standard it was applying.

For planning commissioners and county boards (as of 2009)

Ordinance audits became more important after this opinion. If your county was operating on subdivision provisions adopted decades earlier, you needed to check whether the modern Land Subdivision and Development Act still authorized them. Section 15.2-101(A) was a comfort blanket for past actions, not a substitute for current authority.

Common questions

Q: Is the Dillon Rule unique to Virginia?
A: No, several other states apply some version of the Dillon Rule (a strict-construction approach to local-government powers), but Virginia is one of the strongest enforcers. The doctrine takes its name from Judge John F. Dillon's 19th-century treatise on municipal corporations.

Q: What if my county's ordinance hasn't been challenged?
A: An AG opinion isn't a court ruling, and the ordinance remains on the books until repealed or struck down. But if a developer or other affected party challenges it under the Dillon Rule, this opinion is the kind of guidance Virginia courts use when interpreting the limits of local-government authority.

Q: Could the General Assembly fix this by passing a statute that authorizes broader "suitability" review?
A: Yes. The Dillon Rule says local power is delegated; the General Assembly can broaden the delegation. After 2009, the legislature periodically has revisited the Land Subdivision and Development Act; anyone advising on current Botetourt-style provisions should check the current Article 6 of Chapter 22.

Q: How is "grandfather clause" being used here?
A: The AG borrowed the term from its general usage: a legislative exception that delays the application of a new, stricter standard to existing actors. The opinion explained that § 15.2-101(A) doesn't function that way, even though it has some surface similarity. It preserves the past; it doesn't protect the substance from future-applicable changes in enabling law.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. § 15.2-101
• Va. Code Ann. §§ 15.2-2240 to 15.2-2279 (Land Subdivision and Development Act)
• Botetourt County Code §§ 21-64, 21-122 (subdivision ordinance)

Cases:

• County of Fairfax v. Fleet Indus. Park Ltd. P'ship, 242 Va. 426 (1991), grandfather clauses as legislative grace
• Parker v. County of Madison, 244 Va. 39 (1992), retroactive vs. prospective application
• Nat'l Realty Corp. v. Va. Beach, 209 Va. 172 (1968), Dillon Rule
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975), express or implied power requirement
• Commonwealth v. County Bd., 217 Va. 558 (1977), inquiry ends if power cannot be found
• Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497 (1999), counties bounded by Land Subdivision and Development Act
• McKeon v. Commonwealth, 211 Va. 24 (1970), ordinary meaning of undefined statutory terms
• Va. Beach v. Bd. of Supvrs., 246 Va. 233 (1993), construction in statutory context
• Barr v. Town & Country Props., 240 Va. 292 (1990), manifest legislative intent applied

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-070-Dillon.pdf

Original opinion text

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

January 6, 2009

Elizabeth K. Dillon, Esq.
Botetourt County Attorney

Dear Ms. Dillon:

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 § 15.2-101(A) grandfathers the "suitability of land provisions" contained in §§ 21-64 and 21-122 of the Botetourt County Code.

Response

It is my opinion that § 15.2-101(A) does not grandfather the "suitability of land provisions" contained in §§ 21-64 and 21-122 of the Botetourt County Code.

Background

You advise that § 21-64 of the Botetourt County Code ("Ordinance § 21-64") directs that the subdivision agent

shall not approve the subdivision of land if, from adequate investigation conducted by all public agencies concerned, it has been determined that in the best interest of the public the site is not suitable for platting and development purposes of the kind proposed.[1]

You also advise that in 2002 Botetourt County added § 21-122 ("Ordinance § 21-122") to the Subdivision Ordinances, which includes a similar suitability of land provision, but specifies the conditions that may be considered by the planning commission.[2] You relate that Botetourt County is considering amendments to eliminate the "suitability of land" provisions in §§ 21-64 and 21-122 because the provisions exceed the authority delegated by the General Assembly to localities in Article 6, Chapter 22 of Title 15.2, §§ 15.2-2240 through 15.2-2279. You also advise that it has been suggested that Ordinance § 21-64 was authorized by enabling legislation when it was adopted in 1958 and therefore is "grandfathered."

You conclude that the "suitability of land" provisions in Ordinances § 21-64 and § 21-122 are not authorized under the current Virginia subdivision enabling statutes and are not grandfathered provisions.[3]

Applicable Law and Discussion

The term "grandfathering" simply is a matter of legislative grace where the governing body, by ordinance or other legitimate formal policy, carves out a legislative exception to the general application of regulations for a particular provision.[4] The normal purpose of a "grandfather" provision is to delay the application of some new and stricter standard.[5]

The power of a local governing body, unlike that of the General Assembly, "must be exercised pursuant to an express grant"[6] because the powers of a county "are limited to those conferred expressly or by necessary implication."[7] "If the power cannot be found, the inquiry is at an end."[8] The Dillon Rule requires a narrow interpretation of all powers conferred on local governments since they are delegated powers.[9] Therefore, any doubt as to the existence of power must be resolved against the locality.[10]

Section 15.2-101(A) provides that:

The repeal of Title 15.1 effective as of December 1, 1997, shall not affect the powers of any locality with respect to any ordinance, resolution or by-law adopted and not repealed or rescinded prior to such date[.][11]

Although § 15.2-101(A) does not define the term "power," it generally means "[t]he ability to act or not act"; "[t]he legal right or authorization to act or not act."[12] Words are to be given their ordinary meaning, given the context in which they are used in a statute.[13] "'The manifest intention of the legislature, clearly disclosed by its language, must be applied.'"[14] Therefore, it is clear that the authorization or authority of a locality to act pursuant to a grant or delegation of power by the General Assembly is not affected by the repeal of Title 15.1 with respect to local acts taken pursuant to a grant of power resulting in enactment of a local ordinance, resolution, or by law in effect prior to December 1, 1997. Section 15.2-101(A) simply means that the recodification and repeal of a particular statute that formerly authorized an action does not invalidate the actions taken by localities under a former grant of power by the General Assembly. However, it does not operate to grandfather ordinances adopted under a former grant of statutory authority.

Conclusion

Accordingly, it is my opinion that § 15.2-101(A) does not grandfather the "suitability of land provisions" contained in §§ 21-64 and 21-122 of the Botetourt County Code.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. See BOTETOURT COUNTY, VA., CODE § 21-64 (2002), available at http://www.co.botetourt.va.us/government/documents/mc/ch021.pdf.

2. See id., § 21-122 (2002).

3. Section 2.2-505(B) requires that an opinion request from a county attorney "shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney's legal conclusions."

4. County of Fairfax v. Fleet Indus. Park Ltd. P'ship, 242 Va. 426, 431, 410 S.E.2d 669, 672 (1991); see also Parker v. County of Madison, 244 Va. 39, 41-42, 418 S.E.2d 855, 856 (1992) (noting principle that new laws apply only to future cases unless it is clear that law was intended to have retrospective effect).

5. Op. Va. Att'y Gen.: 2004 at 146, 150; 1980-1981 at 331, 331.

6. Nat'l Realty Corp. v. Va. Beach, 209 Va. 172, 175, 163 S.E.2d 154, 156 (1968).

7. Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975).

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, 504-05, 522 S.E.2d 610, 613-14 (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. When a term is not defined, it must be given its ordinary meaning. See McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970).

12. BLACK'S LAW DICTIONARY 1207 (8th ed. 2004).

13. Va. Beach v. Bd. of Supvrs., 246 Va. 233, 236-37, 435 S.E.2d 382, 384 (1993).

14. Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)).