When Northampton County pulls out of a joint planning commission with three Eastern Shore towns that aren't next to each other, do the towns have to set up their own planning commissions?

Plain-English summary

In 1978, Northampton County and the Town of Exmore set up a joint planning commission under what is now § 15.2-2219. Over the years, the towns of Cheriton, Nassawadox, and Eastville joined. Exmore later withdrew, and in April 2009 the County announced that it too would leave the commission effective June 30, 2009. That would leave the joint commission populated only by three Eastern Shore towns, none of which actually touch or sit next to each other (Nassawadox is roughly ten miles from Eastville and fourteen miles from Cheriton; Cheriton and Eastville are about five miles apart). The Nassawadox town attorney asked whether the three remaining towns had to scramble to form their own planning commissions.

Acting AG William Mims concluded yes. Section 15.2-2210 makes a local planning commission mandatory for "every locality," and a town may satisfy that requirement either by creating its own commission or by joining a joint commission under § 15.2-2219 with one or more "adjoining or adjacent" localities. The statute does not define "adjoining" or "adjacent," so the AG fell back to ordinary dictionary meanings: adjoining means touching or contiguous; adjacent means lying near or close to, but not necessarily touching. The Nassawadox town attorney's request stipulated as a factual matter that the three remaining towns were not adjoining or adjacent. Once that factual premise was accepted, the joint commission could no longer satisfy § 15.2-2219 with only those three members, so each town had to step in with its own commission to meet the mandatory § 15.2-2210 obligation.

The opinion is careful to note that the AG did not independently decide whether the three towns were adjacent. Whether localities are "adjacent" can depend on the size and nature of any intervening land, and the AG historically declines to resolve factual disputes in opinion requests. The AG relied on the town attorney's stipulation, as § 2.2-505(B) effectively requires when town attorneys submit requests.

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.

Background and statutory framework

Virginia's planning law sits in Title 15.2, Chapter 22. Section 15.2-2210 makes a local planning commission mandatory: "Every locality shall by resolution or ordinance create a local planning commission." The same section provides two ways to satisfy that requirement: form your own commission, or participate either in a planning district commission under Chapter 42 or in a joint local commission under § 15.2-2219.

Section 15.2-2219, the joint-commission provision, allows "any one or more adjoining or adjacent counties or municipalities" to band together by agreement. The statute does not define "adjoining" or "adjacent." Under standard Virginia statutory construction, when terms are not defined, they take their ordinary meaning. Black's Law Dictionary defines "adjoining" as touching or sharing a common boundary, and "adjacent" as lying near or close to but not necessarily touching.

The Dillon Rule frames all of this. Localities have only those powers expressly granted or necessarily implied. When the available joint-commission mechanism stops being available because the membership no longer satisfies § 15.2-2219's adjacency requirement, the towns lose the ability to satisfy § 15.2-2210 via the joint route and have to take the only remaining authorized route: form their own commissions.

Common questions

What happens to the existing joint commission when the county withdraws?

The AG concluded that the joint commission could no longer exist in its current form, because § 15.2-2219 requires adjoining or adjacent member localities. With only Eastville, Cheriton, and Nassawadox left (and on the facts as stipulated, those towns are not adjacent), the joint commission's statutory authorization disappears.

Could two of the three towns continue with a joint commission and the third go solo?

The opinion did not directly address that arrangement, but the same reasoning would apply: any continuing joint commission has to be made up of localities that are adjoining or adjacent. On the facts in the opinion, Cheriton and Eastville are about five miles apart, while Nassawadox is significantly farther from both. Whether any two of the three would qualify as "adjacent" is exactly the kind of fact question the AG declined to resolve.

Did the AG actually decide that the three towns were not adjacent?

No. The AG relied on the town attorney's stipulation under § 2.2-505(B), which requires a town attorney's opinion request to include the attorney's own legal conclusions and a statement of facts. The AG noted that whether two localities are "adjacent" can depend on the size and nature of any intervening object, and that the AG historically declines to resolve factual questions.

Is a town that joins a planning district commission under Chapter 42 still required to have a local planning commission?

Yes. Section 15.2-2210 lists planning district commissions and joint local commissions as alternatives to creating a stand-alone local commission. A town that participates in a planning district commission still satisfies § 15.2-2210, but participation alone (without authority to act as the locality's planning commission) does not relieve the locality of the underlying obligation to ensure that planning-commission functions are performed.

Citations

• Va. Code Ann. § 15.2-2210 (mandatory local planning commission)
• Va. Code Ann. § 15.2-2219 (joint local planning commission for adjoining or adjacent localities)
• Va. Code Ann. § 15.2-4200 et seq. (planning district commissions)
• Va. Code Ann. § 2.2-505(B) (town attorney request requirements)
• Masters v. Hart, 189 Va. 969, 55 S.E.2d 205 (1949) (ordinary meaning of "may")
• Temple v. Petersburg, 182 Va. 418, 29 S.E.2d 357 (1944) (plain-meaning rule)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-027-Rowan.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

June 15, 2009

David W. Rowan, Esq.
Nassawadox Town Attorney
P.O. Box 561
Accomac, Virginia 23301

Dear Mr. Rowan:

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 the withdrawal of Northampton County from the Northampton County Joint Planning Commission requires the towns of Eastville, Cheriton, and Nassawadox to create separate planning commissions.

Response

It is my opinion that the withdrawal of Northampton County from the Northampton County Joint Planning Commission requires the towns of Eastville, Cheriton, and Nassawadox to create separate planning commissions.

Background

You advise that on April 10, 1978, the Board of Supervisors of Northampton County and the Town Council of Exmore entered into an agreement ("Agreement") creating the Northampton County Joint Planning Commission ("Commission") under § 15.1-443, the predecessor statute to § 15.2-2219. The Agreement set forth the general duties and composition of the Commission, which contemplated the addition of other municipalities. Subsequently, the towns of Cheriton, Nassawadox, and Eastville were admitted to the Commission.

You further advise that Article V, Section 2 of the Agreement provides that:

Any governmental subdivision may withdraw from the Commission by submitting to the Commission in writing, at least 30 days before the end of the Commission's then current fiscal year, a notice of intent to withdraw. Such withdrawal shall become effective upon the conclusion of the Commission's then current fiscal year.

You relate that the Northampton County Board of Supervisors, by letter dated April 16, 2009, to Cheriton, Eastville, and Nassawadox, announced the County's intention to withdraw from the Commission effective on June 30, 2009. You note that Exmore previously had withdrawn from the Commission. When the withdrawal of Northampton County becomes effective, the Commission will be comprised solely of representatives of Eastville, Cheriton, and Nassawadox.

Finally, you advise it is your legal conclusion[1] that the three remaining municipalities in the Commission, Nassawadox, Eastville, and Cheriton, are not adjoining or adjacent.[2] All three towns are located within Northampton County; however, Nassawadox is nearly ten miles from Eastville and more than fourteen miles from Cheriton. Further, you note that Cheriton and Eastville are nearly five miles apart.

Applicable Law and Discussion

"The power of a municipality, unlike that of the [General Assembly], must be exercised pursuant to an express grant"[3] because "municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable."[4] "If the power cannot be found, the inquiry is at an end."[5] The Dillon Rule requires a narrow interpretation of all powers conferred on local governments since they are delegated powers.[6] Therefore, any doubt as to the existence of power must be resolved against the locality.[7]

Section 15.2-2210 requires every local governing body in the Commonwealth to create a local planning commission:

Every locality shall by resolution or ordinance create a local planning commission in order to promote the orderly development of the locality and its environs. In accomplishing the objectives of § 15.2-2200 the local planning commissions shall serve primarily in an advisory capacity to the governing bodies.

Any locality may participate in a planning district commission in accordance with Chapter 42 (§ 15.2-4200 et seq.) of this title or a joint local commission in accordance with § 15.2-2219.

Section 15.2-2210 provides that localities may participate in a joint local commission under § 15.2-2219, which provides that:

Any one or more adjoining or adjacent counties or municipalities including any municipality within any such county may[8] by agreement provide for a joint local planning commission for any two or more of such counties and municipalities. The agreement shall provide for the number of members of the commission and how they shall be appointed, in what proportion the expenses of the commission shall be borne by the participating localities, and any other matters pertinent to the operation of the commission as the joint local planning commission for the localities. Any commission so created shall have, as to each participating locality, the powers and duties granted to and imposed upon local planning commissions under [Chapter 22].

The General Assembly does not define the terms "adjoining" or "adjacent" in § 15.2-2219. Generally, when a term is not defined by the General Assembly, it must be given its ordinary meaning.[9] The term "adjoining" generally means "[t]ouching; sharing a common boundary; CONTIGUOUS."[10] "Adjacent" generally means "[l]ying near or close to, but not necessarily touching."[11]

As previously noted, you advise that the three remaining municipalities in the Commission, Eastville, Cheriton, and Nassawadox, are not adjoining or adjacent.[12] It is well-settled that "[i]f the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it."[13] It is unnecessary to resort to any rules of statutory construction when the language of a statute is unambiguous.[14]

The application of the Dillon Rule in the Commonwealth requires a narrow interpretation of all powers conferred on local governments because any such powers are delegated powers.[15] Thus, the withdrawal of Northampton County effectively abolishes the Commission because the remaining municipalities are not adjacent as that term is narrowly interpreted.

Conclusion

Accordingly, it is my opinion that the withdrawal of Northampton County from the Northampton County Joint Planning Commission requires the towns of Eastville, Cheriton, and Nassawadox to create separate planning commissions.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Any request by a town attorney for an opinion from the Attorney General "shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney's legal conclusions." VA. CODE ANN. § 2.2-505(B) (2008).
2. See infra note 12.
3. Nat'l Realty Corp. v. Va. Beach, 209 Va. 172, 175, 163 S.E.2d 154, 156 (1968).
4. Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975) (noting Dillon Rule).
5. Commonwealth v. County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).
6. 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, but may include optional provisions contained in act); Op. Va. Att'y Gen: 2002 at 77, 78; 1974-1975 at 403, 405.
7. 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.
8. "Unless it is manifest that the purpose of the legislature was to use the word 'may' in the sense of 'shall' or 'must,' then 'may' should be given its ordinary meaning-permission, importing discretion." Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 205, 210 (1949), quoted in Bd. of Supvrs. v. Weems, 194 Va. 10, 15, 72 S.E.2d 378, 381 (1952); see also Op. Va. Att'y Gen.: 2000 at 29, 32 n.2; 1999 at 193, 195 n.6; 1997 at 10, 12 (noting that use of "may" in statute indicates statute is permissive and discretionary, rather than mandatory).
9. See McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970).
10. BLACK'S LAW DICTIONARY 44 (8th ed. 2004).
11. Id.
12. This opinion does not provide an analysis or conclusion regarding the definition of adjacent for purposes of § 15.2-2219. Instead, I rely upon the conclusion that you state in your request dated May 4, 2009. Generally, adjoining or contiguous means touching, and adjacent means an object intervenes. See 1966-1967 Op. Va. Att'y Gen. 90, 90. The size and nature of the object may render the question of whether the localities are adjacent for purposes of § 15.2-2219 a question of fact. Attorneys General historically have declined to render official opinions when the request involves a question of fact rather than one of law. See, e.g., Op. Va. Att'y Gen.: 2007 at 116, 118; 1997 at 195, 196; 1996 at 207, 208.
13. Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944).
14. Commonwealth v. Sanderson, 170 Va. 33, 38-39, 195 S.E. 516, 519 (1938).
15. See supra note 6 and accompanying text.