Can a Virginia county's zoning ordinance treat the same zoning district differently based on which electoral district the parcel sits in?

Plain-English summary

In February 2013, the Spotsylvania County Board of Supervisors adopted an ordinance amending the county's zoning code to allow domestic laying hens as an accessory use in eleven zoning districts (agricultural and residential). The catch: the amendment only allowed laying hens in those eleven zoning districts where they also fell within the boundaries of four of Spotsylvania's seven electoral districts (Livingston, Chancellor, Salem, and Courtland).

Spotsylvania has 28 zoning districts and 7 electoral districts. The boundaries don't match. So under the February Amendment, two parcels in the same zoning class (say, A-3 Agricultural) would be treated differently based on which voting district they were in: a chicken-keeping right in some parts of the zoning district, no chicken-keeping right in others.

The Interim County Attorney asked whether this kind of overlay was permissible. The AG said no.

The relevant statutes are Va. Code §§ 15.2-2280 (authority to classify territory into zoning districts) and 15.2-2282 (requirement that "all such regulations shall be uniform for each class or kind of buildings and uses throughout each district").

The uniformity requirement is the key. Once a locality has drawn its zoning districts, the regulations governing each district must apply uniformly across that district. A locality cannot use a different geographic overlay (like electoral districts) to subdivide its zoning districts into varying-rule zones.

The AG's analysis ran through three points:

Dillon Rule. Virginia localities have only express grants, fairly implied powers, or essential/indispensable powers. The General Assembly did not expressly grant counties the authority to vary zoning regulations within a zoning district based on electoral district boundaries (or any other non-zoning boundary). Section 15.2-2284, which lists considerations localities may use in creating zoning districts, doesn't include conformity with electoral district boundaries.

Statutory uniformity. Section 15.2-2282 commands uniformity within each zoning district. A regulation that treats some parcels in a zoning district differently from others (based on electoral district overlay) violates that command.

Equal treatment within a zoning district. The February Amendment "treats similarly situated persons within the same zoning district differently." Owners in one of the four named electoral districts could keep hens; owners in the other three electoral districts could not. Both groups owned parcels in the same zoning district, with the same zoning classification, but had different rights.

Conflict between local ordinance and state statute is resolved in favor of the statute (Va. Code § 1-248, Sinclair, Covel). So the February Amendment was invalid.

The AG noted that if Spotsylvania wanted to allow laying hens only in some parts of the county, it could do so by drawing new zoning districts (or sub-districts) reflecting the desired geographic distinction. What it could not do was overlay electoral district boundaries on top of existing zoning districts to create sub-areas with different rules.

Currency note

This opinion was issued in 2013. 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.

Va. Code §§ 15.2-2280 through 15.2-2316 (the zoning enabling statutes) have been amended multiple times since 2013. The uniformity requirement has remained substantively the same. Anyone working on a current zoning question should check current statutes.

Common questions

What is a zoning district?
A geographic area in a locality where the same set of land use regulations apply. Common examples: residential, commercial, industrial, agricultural. The locality creates the districts by ordinance and draws their boundaries.

What is an electoral district?
A geographic area used to elect members of the governing body. Spotsylvania's seven electoral districts each elect one supervisor. Electoral districts are drawn to balance population for representation purposes; their boundaries usually don't track zoning district lines.

Why does the uniformity requirement exist?
To prevent arbitrary differential treatment within a zoning class. The reason a parcel is in a zoning district is its compatibility with the uses and regulations of that district. If those uses and regulations vary based on some other overlay, similarly situated parcels get different rights for reasons unrelated to the zoning purpose.

Could Spotsylvania achieve the same result through zoning sub-districts?
Yes. The county could create new zoning sub-districts (e.g., A-3-Chicken-Permitted and A-3-Chicken-Prohibited) and draw their boundaries to match where the supervisors want laying hens allowed. Each new sub-district would be internally uniform.

Why would the Board use electoral district boundaries?
Likely political: supervisors representing the four favored districts wanted to give their constituents the chicken-keeping right, while supervisors representing the three other districts didn't. Politically explicable, but legally improper.

What happens to the existing chickens in the affected districts?
The opinion does not address pre-existing nonconforming use. If a property was lawfully keeping hens before the ordinance was challenged, that use might continue under nonconforming-use principles, depending on local ordinance terms and case-by-case analysis.

Could a locality have urban-style vs. rural-style zoning rules?
Yes, if the locality draws zoning districts that reflect the urban-rural distinction. The trick is that the zoning district itself has to be the unit of analysis; the locality cannot use unrelated district boundaries (electoral or otherwise) to vary rules within a single zoning district.

Does the same uniformity rule apply to overlay districts?
Yes, but overlay districts are themselves zoning constructs. A historic district overlay, for example, is a zoning sub-classification with its own internal uniformity. The overlay is not electoral or unrelated jurisdictional.

Background and statutory framework

• Va. Code § 15.2-2280: authority to create zoning districts.
• Va. Code § 15.2-2282: uniformity requirement within each district.
• Va. Code § 15.2-2284: considerations for creating zoning districts.
• Va. Code §§ 15.2-2280 through 15.2-2316: full zoning enabling structure.
• Va. Code § 1-248: general statute superseding rule (state law over conflicting local ordinance).
• Va. Code § 24.2-304.1: electoral district creation (cited to show its unrelated statutory home).

The interpretive moves:
- Dillon Rule limits localities to granted powers.
- Statutes addressing the same subject read together (Prillaman).
- Plain meaning controls (Halifax).
- Conflict between local ordinance and state statute resolved in favor of statute (Sinclair, Covel).
- Section 15.2-2282 explicit "shall be uniform" language is dispositive.

Citations

• Va. Code §§ 15.2-2280, 15.2-2282, 15.2-2284
• Va. Code § 1-248
• Richmond v. Confrere Club of Richmond, 239 Va. 77, 387 S.E.2d 471 (1990)
• Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 727 S.E.2d 40 (2012)
• Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 546 S.E.2d 696 (2001)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Covel v. Town of Vienna, 280 Va. 151, 694 S.E.2d 609 (2010)
• Schefer v. City Council, 279 Va. 588, 691 S.E.2d 778 (2010)
• 1992 Op. Va. Att'y Gen. 145
• 2002 Op. Va. Att'y Gen. 109
• 2010 Op. Va. Att'y Gen. 10
• 2010 Op. Va. Att'y Gen. 87
• Spotsylvania County Ordinance No. 23-153 (2013)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-053_Benkahla.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 20, 2013

James R. Benkahla, Esquire
Interim County Attorney
Office of County Attorney
County of Spotsylvania
9105 Courthouse Road
Spotsylvania, Virginia 22553

Dear Mr. Benkahla:

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 Spotsylvania County Board of Supervisors (the "Board") may enact a zoning ordinance amendment that applies to parcels located in areas defined by the boundaries of electoral districts, without regard to the boundaries of the county's zoning districts.

Response

It is my opinion that the Board may not enact a zoning ordinance amendment that applies to parcels located in areas defined by the boundaries of electoral districts, without regard to the boundaries of the county's zoning districts.

Background

You relate that the Spotsylvania County zoning ordinance has twenty-eight zoning districts ranging from Agricultural to Mixed Use. You further relate that there are seven electoral districts used to elect the Board, and, that the boundaries of the zoning districts and the electoral districts are not the same. On February 12, 2013, the Board adopted an amendment to the County zoning ordinance (the "February Amendment") that authorized the keeping of laying hens in eleven of the County's zoning districts zoned for agricultural or residential uses, but only in the parts of those eleven zoning districts that also lie within the boundaries of four of the County's electoral districts.[1] The February Amendment did not authorize the keeping of laying hens in the parts of those eleven agricultural and residential zoning districts that lie outside the boundaries of those four electoral districts. In effect, the February Amendment treats parcels with the same zoning classification differently based on the electoral district in which they are found.

Applicable Law and Discussion

"In determining the legislative powers of local governing bodies, Virginia follows the Dillon Rule of strict construction."[2] This rule states that local governing bodies "have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable."[3] Accordingly, if no delegation from the legislature can be found to authorize the enactment of a local ordinance, then the local ordinance is void.[4] Moreover, when the legislature has created an express grant of authority, that authority exists only to the extent specifically granted,[5] and when a local ordinance conflicts with a statute enacted by the General Assembly, the statute must prevail.[6]

I find nothing in the Code of Virginia that provides express authority to regulate fractional parts of a zoning district according to the boundaries of electoral districts. Nonetheless, Virginia law does enable a locality to enact zoning ordinances to regulate the use and development of the territory under its jurisdiction.[7] Specifically, § 15.2-2280 permits a locality to adopt ordinances classifying the territory under its jurisdiction into districts "as it may deem best suited to carry out the purposes of [the zoning article]," and once such territory is classified,[8] the provision further authorizes the locality to regulate or restrict land use within each district according to the applicable "agricultural, business, industrial, residential, flood plain and other specific uses." Notwithstanding this broad grant of authority, § 15.2-2282 requires that all local zoning regulations "be uniform for each class or kind of buildings and uses throughout each district."

In construing statutes, the plain meaning of the language used controls and determines legislative intent unless a literal construction would be manifestly absurd.[9] Further, two statutes that are parts of the same statutory plan or deal with the same subject must be read and construed together.[10] Sections 15.2-2280 and 15.2-2282 are parts of an overall statutory plan enabling, and governing, local authority to zone property.[11] When read together, the language of these statutes provides that a locality may classify its territory into zoning districts; however, in so doing, the locality must ensure that all zoning regulations are uniform throughout each zoning district. Accordingly, § 15.2-2282 serves to limit the authority granted under § 15.2-2280.

On its face, the February Amendment treats similarly situated persons within the same zoning district differently. It uses a jurisdictional division created for an unrelated purpose, the electoral district, to inconsistently regulate land use within several of its zoning districts.[12] Specifically, owners of property in one of the four electoral districts named in the February Amendment are authorized to use their property in a way that is disallowed to property owners in the county's three other electoral districts. Because the February Amendment does not comply with the requirement that uses be uniform throughout each individual zoning district, it conflicts with a prescribed limitation placed by the General Assembly upon local governing bodies respecting land use regulation.[13]

Conclusion

Accordingly, it is my opinion that the Board of Supervisors may not enact a zoning ordinance amendment that applies to parcels located in areas defined by the boundaries of electoral districts, without regard to the boundaries of the county's zoning districts.

With kindest regards, I am,

Kenneth T. Cuccinelli, II
Attorney General

[1] County of Spotsylvania, Va., Ordinance No. 23-153 (2013) (limiting the keeping of domestic laying hens as an accessory use to the Livingston, Chancellor, Salem and Courtland voting districts). See also County of Spotsylvania, Va., Code §§ 23-6.2.2, -6.3.2, -6.4.2, -6.5.2, -6.6.2, -6.7.2, -6.8.2, -6.11.2, -6.12.3, -6.24.2, -6.26.2.

[2] Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990).

[3] Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 44 (2012) (internal quotation marks omitted).

[4] Id.

[5] Cf., e.g., 2010 Op. Va. Att'y Gen. 87, 89 n.3; 2010 Op. Va. Att'y Gen. 10, 11; 2002 Op. Va. Att'y Gen. 109, 111; 1992 Op. Va. Att'y Gen. 145, 146.

[6] See Va. Code Ann. § 1-248 (2011); Sinclair, 283 Va. at 576, 727 S.E.2d at 44; Covel v. Town of Vienna, 280 Va. 151, 162, 694 S.E.2d 609, 616 (2010).

[7] See Va. Code Ann. § 15.2-2280 (2012).

[8] Section 15.2-2284 sets forth the considerations that may be used by a locality in creating, and by extension, regulating, zoning districts. I note that conformity with electoral district boundaries is not listed.

[9] Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 99-100, 546 S.E.2d 696, 702 (2001).

[10] Prillaman v. Commonwealth, 199 Va. 401, 405-406, 100 S.E.2d 4, 7-8 (1957).

[11] See Va. Code Ann. Title 15.2, Chap. 22, art. 7, §§ 15.2-2280 through 2316 (2012 & Supp. 2013) (containing statutes governing local zoning laws and regulations).

[12] Statutory provisions relating to the creation and use of electoral districts are contained in another title of the Code. See, e.g., Va. Code Ann. § 24.2-304.1 (Supp. 2013).

[13] Section 15.2-2282; and see discussion Schefer v. City Council, 279 Va. 588, 593, 691 S.E.2d 778, 780-81 (2010).