Must a Virginia locality plan its urban development areas to handle 10-20 years of growth, and can it deny developer rezoning for lack of infrastructure?

Plain-English summary

Delegate Christopher Peace asked AG William Mims to sort out the mechanics of Virginia's then-relatively-new urban development area (UDA) statute. Section 15.2-2223.1 had been added to require localities meeting certain size or growth thresholds to designate, in their comprehensive plans, one or more UDAs to absorb projected growth. UDAs are areas the locality identifies as suitable for higher density because they sit near transportation, water/sewer, or already-developed places. The statute mandated specific minimums: at least four residential units per gross acre and a 0.4 floor-area ratio for commercial use. Delegate Peace wanted concrete answers about how the planning math worked and what discretion remained.

The AG made three rulings.

First, UDAs must accommodate 10 to 20 years of anticipated growth within the area itself. The statute's text is plain: the comprehensive plan must "designate one or more urban development areas sufficient to meet projected residential and commercial growth in the locality for an ensuing period of at least 10 but not more than 20 years." Phasing within that window is allowed. The opinion declined to invent an alternative interpretation that would scatter the growth target across non-UDA areas.

Second, developers in UDAs are required to zone and develop to the statute's specific compact-development densities. The plain-statute rule applied: the General Assembly said "at least four residential units per gross acre" and "a minimum floor area ratio of 0.4," and the legislature is presumed to have chosen its words deliberately. The legislature could have left these as discretionary minimums; it did not.

Third, and probably the practical heart of the question, a local governing body may not deny a rezoning request solely on the basis of inadequate public facilities. The AG carried forward a 2003 AG opinion that had reached this conclusion: the General Assembly would have to expressly authorize that kind of denial, and no such authorization exists. So a locality whose roads and schools cannot keep up with UDA-density development cannot use facility inadequacy as the standalone ground for blocking developer rezoning. Whether the General Assembly would raise the density requirements or how the county and developers should finance the infrastructure were policy and factual questions the AG declined to opine on.

Currency note

This opinion was issued in 2009 (released January 2010). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The 2012 General Assembly amended § 15.2-2223.1 to make UDAs discretionary rather than mandatory in several respects, and further changes followed. Treat this page as historical context, not current legal advice. Verify the current version of § 15.2-2223.1 before relying on any specific rule.

Common questions

Q: What is an urban development area?
A: As defined in 2009, an area a locality designates in its comprehensive plan that is "appropriate for higher density development due to proximity to transportation facilities, the availability of a public or community water and sewer system, or proximity to a city, town, or other developed area."

Q: Which localities had to adopt UDAs in 2009?
A: Those with a population of at least 20,000 and at least 5% population growth, or those with at least 15% population growth, were required to designate UDAs in their comprehensive plans.

Q: What density did the statute require inside a UDA?
A: At least four residential units per gross acre and at least 0.4 floor-area ratio for commercial development, "appropriate for reasonably compact development."

Q: Why couldn't a county deny rezoning for inadequate facilities?
A: Because Virginia is a Dillon Rule state and the General Assembly has not given localities express authority to use facility inadequacy as the sole ground for denial. A 2003 AG opinion reached the same conclusion, and the General Assembly had not enacted authorization in the years since.

Q: Could a county consider facility adequacy at all?
A: Yes, alongside other factors. The opinion's point is narrower: facility inadequacy alone is not enough. Combined with other proper considerations, it can still factor into the legislative judgment on a rezoning.

Background and statutory framework

Article 3, Chapter 22 of Title 15.2 (§§ 15.2-2223 through 15.2-2232) governs comprehensive plans in Virginia. Section 15.2-2223.1 was the UDA provision, layered on top of the general comprehensive-plan framework. Comprehensive plans serve as guidelines for zoning, not as direct land-use controls, per Board of Supervisors v. Safeco Insurance. The Supreme Court of Virginia has stated that comprehensive plans set out future development direction "reached after consultation with experts and the public" (Jonesville v. Powell Valley Village).

The opinion is a clean application of plain-statute interpretation: when the General Assembly says "at least 10 but not more than 20 years," that means 10 to 20 years. And when express authority for a rezoning-denial ground is required and absent, localities cannot manufacture it.

Citations

• Va. Code Ann. § 15.2-2223.1(A) (UDA designation and density requirements)
• Va. Code Ann. § 15.2-2232 (legal effect of comprehensive plan)
• Bd. of Supvrs. v. Safeco Ins. Co., 226 Va. 329 (1983) (comprehensive plan as guideline)
• 2003 Op. Va. Att'y Gen. 42 (rezoning denial requires express statutory 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/2010/09-091-Peace.pdf

Original opinion text

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

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

January 11, 2010

The Honorable Christopher K. Peace
Member, House of Delegates
P.O. Box 819
Mechanicsville, Virginia 23111

Dear Delegate Peace:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire about § 15.2-2223.1 as it relates to the inclusion of urban development areas ("UDA") in the comprehensive plan of Hanover County. Specifically, you ask whether UDAs must accommodate 10 to 20 years of anticipated growth in addition to or instead of growth planned and permitted in other areas. Further, you ask whether developers are required to zone and develop to specific densities within UDAs. You ask whether the Board of Supervisors must approve rezoning to specified densities even if public facilities are inadequate. Finally, you ask whether specified densities will be increased and how the County and developers are to finance the infrastructure necessary to serve UDA style development.

Response

It is my opinion that an urban development area must accommodate 10 to 20 years of anticipated growth within such an area. It further is my opinion that developers are required to zone and develop to specific densities within such areas. Finally, it is my opinion that local governing bodies may not deny a rezoning request solely on the basis of inadequate public facilities.

Limitation of Opinion

The traditional role of the Attorney General regarding opinion requests is to interpret statutes to the extent possible utilizing the pertinent rules of statutory construction and general application of the statutory provisions. Additionally, Attorneys General have a longstanding policy of responding to official opinion requests only when such requests concern an interpretation of federal or state law, rule, or regulation.[1] In instances when a request: (1) involves questions of fact and does not involve a question of law; (2) requires the interpretation of a matter reserved to another entity; (3) involves a matter currently in litigation; or (4) involves a matter of purely local concern or procedure, Attorneys General traditionally have declined to render an opinion.[2] Accordingly, I must limit my comments to the interpretation of § 15.2-2223.1. Further, I must decline to opine on whether the General Assembly will increase the specified densities or how the County and developers may finance the necessary infrastructure.

Applicable Law and Discussion

Article 3, Chapter 22 of Title 15.2, §§ 15.2-2223 through 15.2-2232, governs the development and adoption of a comprehensive plan. Section 15.2-2232 generally provides for the legal status of a comprehensive plan, and § 15.2-2232(A) provides that a comprehensive plan shall control the general development of land within a locality. "A comprehensive plan provides a guideline for future development and systematic change, reached after consultation with experts and the public."[3] "[T]he Virginia statutes assure [landowners] that such a change will not be made suddenly, arbitrarily, or capriciously but only after a period of investigation and community planning."[4] Generally, a comprehensive plan does not act as an instrument of land use control.[5] Rather, the plan serves as a guideline for the development and implementation of zoning ordinances.[6] As noted in a prior opinion of the Attorney General, "[a] comprehensive plan … acts as an indirect instrument of land use control with respect to public areas, public buildings, [and] public structures … whether publicly or privately owned."[7]

The Supreme Court of Virginia also has acknowledged that the provisions of a comprehensive plan can be an important factor in land use decisions.[8] For example, in the context of the special exception process, the Court specifically has approved zoning ordinance provisions governing the grant or denial of special exceptions that require the consideration of the comprehensive plan or the general purposes of the local zoning ordinance as part of the special exception process.[9] Thus, a comprehensive plan serves as a general guideline for the development and implementation of a zoning ordinance.[10]

Section 15.2-2223.1(A) requires that a locality have (1) a population of at least 20,000 and population growth of at least 5%; or (2) a population growth of at least 15% to amend its comprehensive plan to incorporate one or more UDAs. For purposes of § 15.2-2223.1, the General Assembly defines a UDA as

an area designated by a locality that is appropriate for higher density development due to proximity to transportation facilities, the availability of a public or community water and sewer system, or proximity to a city, town, or other developed area.

Further, § 15.2-2223.1(A) requires that within UDAs a comprehensive plan must "provide for commercial and residential densities … that are appropriate for reasonably compact development at a density of at least four residential units per gross acre and a minimum floor area ratio of 0.4 per gross acre for commercial development." Finally, the comprehensive plan is required to "designate one or more urban development areas sufficient to meet projected residential and commercial growth in the locality for an ensuing period of at least 10 but not more than 20 years, which may include phasing of development within the urban development areas."[11]

"A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning."[12] In addition, it must be assumed that "'the legislature chose, with care, the words it used when it enacted the relevant statute, and [courts] are bound by those words as [they] interpret the statute.'"[13] Courts may not rewrite statutes.[14] Finally, I note that the "mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute."[15]

Thus, the General Assembly specifically provides that when a locality is permitted to amend its comprehensive plan to designate one or more UDAs, the UDAs must be sufficient to meet the locality's projected residential and commercial growth for a period of at least 10, but not more than 20 years.[16] Furthermore, the General Assembly plainly requires that the UDAs must accommodate reasonably compact development at the statutorily designated levels of density and minimum floor area ratio for commercial development.[17]

A prior opinion of the Attorney General (the "2003 Opinion") concludes that "the General Assembly must enact express statutory authorization to permit a local governing body to deny a rezoning request solely on the basis of inadequate public facilities."[18] The General Assembly has not enacted any such statutory authorization. Therefore, the conclusion of the 2003 Opinion remains valid.

Conclusion

Accordingly, it is my opinion that an urban development area must accommodate 10 to 20 years of anticipated growth within such an area. It further is my opinion that developers are required to zone and develop to specific densities within such areas. Finally, it is my opinion that local governing bodies may not deny a rezoning request solely on the basis of inadequate public facilities.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See Op. Va. Att'y Gen.: 1998 at 71, 72; 1997 at 105, 107; 1991 at 237, 238; 1989 at 288, 293 n.1; 1986-1987 at 347, 348; 1977-1978 at 31, 33; 1976-1977 at 17, 17.
2. The authority of the Attorney General to issue advisory opinion is limited to questions that are legal in nature. See, e.g., Op. Va. Att'y Gen.: 2008 at 141, 144 n.14; 2006 at 95, 97; 2002 at 144, 147; 1999 at 215, 217; 1997 at 195, 196; 1991 at 122, 124; 1977-1978 at 31, 33.
3. Jonesville v. Powell Valley Village Ltd. P'ship, 254 Va. 70, 76, 487 S.E. 2d 207, 211 (1997) (interpreting § 15.1-446.1, predecessor to § 15.2-2223).
4. Bd. of Supvrs. v. Snell Constr. Corp., 214 Va. 655, 658, 202 S.E. 2d 889, 892 (1974).
5. See 1987-1988 Op. Va. Att'y Gen. 212, 213.
6. See Bd. of Supvrs. v. Safeco Ins. Co., 226 Va. 329, 335, 310 S.E.2d 445, 448 (1983) (noting that comprehensive plan "is not a zoning ordinance but only a guideline for zoning ordinances"); 1987-1988 Op. Va. Att'y Gen., supra note 5, at 213.
7. See 1987-1988 Op. Va. Att'y Gen., supra note 5, at 213.
8. See infra note 9.
9. See, e.g., Nat'l Mem'l Park v. Bd. of Zoning Appeals, 232 Va. 89, 348 S.E.2d 248 (1986) (upholding decision of zoning board that applied standards set out in county zoning ordinance to deny memorial park's application for special use permit to operate crematory); Bell v. City Council, 224 Va. 490, 496, 297 S.E.2d 810, 814 (1982) (finding that amendments to city zoning regulations, which allowed special permits to modify setback and density requirements of zoning ordinance, were valid); Nat'l Maritime Union v. Norfolk, 202 Va. 672, 119 S.E.2d 307 (1961) (holding that challenged provision of zoning ordinance, which required use permit for union hiring hall, provided adequate standards to assure uniform application and was constitutional).
10. See Safeco Insurance, 226 Va. at 335, 310 S.E.2d at 448; 1987-1988 Op. Va. Att'y Gen., supra note 5 at 213.
11. VA. CODE ANN. §15.2-2223.1(A) (Supp. 2009).
12. Loudoun County Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993).
13. Va. Beach v. ESG Enters., Inc., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990))
14. Id. at 295, 396 S.E.2d at 674.
15. Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992); see also Christiansburg v. Montgomery County, 216 Va. 654, 658, 222 S.E.2d 513, 516 (1976); Tate v. Ogg, 170 Va. 95, 103, 195 S.E. 496, 499 (1938); 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47:23 (7th ed. 2007); Op. Va. Att'y Gen.: 1998 at 33, 34; 1992 at 145, 146 (applying or explaining maxim expressio unius est exclusio alterius).
16. See § 15.2-2223.1(A).
17. See id.
18. 2003 Op. Va. Att'y Gen. 42, 43 (emphasis in original).