Did Virginia's 1997 local-government recodification grandfather Botetourt County's old subdivision suitability rules?

Plain-English summary

Botetourt County asked whether Virginia Code section 15.2-101(A) grandfathered two "suitability of land" provisions in its subdivision ordinance. One dated to 1958; the County added the other in 2002. The County Attorney reported a view that the provisions exceeded authority under the current Land Subdivision and Development Act. The AG addressed the grandfathering question and answered no.

Section 15.2-101(A) says the 1997 repeal of Title 15.1 "shall not affect the powers of any locality" with respect to an ordinance, resolution, or bylaw adopted before repeal and still in effect. The AG read this to preserve local acts taken under a former grant of power from being invalidated merely by recodification. The opinion then made the broader point: the statute "does not operate to grandfather ordinances adopted under a former grant of statutory authority." That conclusion does not depend on a finding that the County lacked authority to adopt its 1958 ordinance. The AG did not decide whether either suitability provision was authorized under the current subdivision statutes or whether the County should amend it.

Currency note

This opinion was issued in 2009. Check current Virginia subdivision law and the text of any applicable local ordinance before relying on it.

What the opinion meant for those involved

County attorneys and planning officials

Do not treat section 15.2-101(A) as a grandfathering defense for a subdivision ordinance solely because it predates the 1997 recodification. The AG concluded the section did not grandfather Botetourt's provisions in sections 21-64 and 21-122. The County's separate question about the scope of its current authority was not resolved by this answer; the opinion does not direct the County to repeal or amend the provisions.

Developers and landowners

If a county relies on an older subdivision rule, this opinion addresses only whether the 1997 recodification grandfathered that rule. It does not itself decide the rule's validity under the Land Subdivision and Development Act.

Common questions

Q: Did the 1997 recodification grandfather Botetourt's suitability-of-land provisions?
A: No. The AG expressly concluded section 15.2-101(A) did not grandfather the provisions in County Code sections 21-64 and 21-122.

Q: Did the AG say the 1958 provision was unauthorized when adopted?
A: No. The opinion explains that even an ordinance adopted under a former statutory grant is not grandfathered by section 15.2-101(A).

Q: Did the AG decide the County had to repeal or amend either provision?
A: No. The County reported it was considering amendments, but the AG's conclusion addressed the grandfathering question.

Q: What does section 15.2-101(A) preserve?
A: The AG said recodification and repeal of a statute that formerly authorized a local action do not invalidate actions already taken under that former grant of power.

Background and statutory framework

The County asked about its subdivision suitability provisions in sections 21-64 and 21-122. It said the first was adopted in 1958 and the second in 2002, and described a concern about current authority under the Land Subdivision and Development Act. The AG explained the Dillon Rule, under which local power must come from the General Assembly, then interpreted the effect of section 15.2-101(A) after Title 15.1 was repealed. The provision protects earlier authorized local actions from invalidation due to recodification, but does not grandfather ordinances under a former grant of authority. The AG's final conclusion was limited to that grandfathering issue.

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)).