Can a Virginia city or county use zoning to keep a gun shop from opening next to a school?

Plain-English summary

Delegate Sam Rasoul asked the AG a question that came up because a gun shop opened in Salem about 100 yards from a Roanoke County elementary school, with patrons regularly carrying firearms in and out of the shop in line of sight of classrooms and the playground. He wanted to know whether Va. Code § 15.2-915, which generally bars Virginia localities from regulating firearms, also barred a locality from using its zoning power to control where gun shops can locate.

The AG's answer was that local zoning of gun shop locations is allowed. Section 15.2-915(A) preempts ordinances "governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms," but those are listed activities. The location of a sales establishment is a different field, land use, and § 15.2-915 says nothing about it.

The AG leaned on Virginia Supreme Court precedent that has consistently let localities use zoning to regulate the location of businesses whose underlying activity the state has otherwise preempted. In City of Norfolk v. Tiny House (1981), the Virginia Supreme Court (not the U.S. Supreme Court, despite the case name; the "Va." reporter signals state court) upheld a Norfolk zoning ordinance over the location of alcoholic-beverage sellers, even though the state Alcoholic Beverage Control Commission has broad authority over alcohol sales. The Court reasoned that if the ABC could license a bar into a residential neighborhood with no local zoning check, the result would be absurd. County of Chesterfield v. Windy Hill (2002) extended the reasoning to conditional-use permits. Resource Conservation Management v. Board of Supervisors (1989) said the same about waste management.

The opinion also drew on a 1994 Virginia AG opinion that had analyzed § 15.2-915's predecessor and concluded a local ordinance regulating shooting ranges did not violate the preemption statute. And it pointed to a Kentucky Court of Appeals decision in Peter Garrett Gunsmith v. City of Dayton (2002) which, under a parallel Kentucky statute, said zoning of gun shop locations was a land-use regulation, not a firearms regulation.

The conclusion: a Virginia locality may zone the location of a gun shop. Whether any specific ordinance is permissible, reasonable, and constitutional depends on its facts and would be reviewed case-by-case.

Currency note

This opinion was issued in 2019. 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 is a Dillon Rule state (§ 1-248), meaning localities have only the powers expressly granted, those necessarily implied from express grants, and those essential and indispensable. Section 15.2-915(A), enacted to curtail local firearm regulation, provides:

No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.

Virginia preemption doctrine, as set out in Resource Conservation Management v. Board of Supervisors, 238 Va. 15 (1989), distinguishes express preemption from field preemption. An ordinance is preempted if it is expressly prohibited by state law or if the state has comprehensively occupied the entire field.

On the zoning side, § 15.2-2280 lets a locality classify its territory into districts and regulate "the use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses." Section 15.2-2284 directs that zoning ordinances "shall be drawn and applied with reasonable consideration for ... the suitability of property for various uses ... and the encouragement of the most appropriate use of land." Sections 15.2-2200 and 15.2-2283 frame the overarching purpose: protecting public health, safety, and welfare.

The line of Virginia Supreme Court cases relevant here:

• City of Norfolk v. Tiny House, Inc., 222 Va. 414 (1981). Upheld local zoning of alcoholic-beverage sellers, notwithstanding ABC's broad statewide authority. The Court refused to read state alcohol law as preempting local land-use control.
• Resource Conservation Management v. Board of Supervisors, 238 Va. 15 (1989). County's zoning authority to prohibit landfills in certain locations was not preempted by the Virginia Waste Management Act.
• County of Chesterfield v. Windy Hill, Ltd., 263 Va. 197 (2002). Upheld a conditional-use permit with an alcohol-free condition, applying Tiny House's reasoning.
• City of Richmond v. Southern Railway, 203 Va. 220 (1962). State Corporation Commission's utility authority did not displace local zoning.

The 1994 Virginia AG opinion, applying § 15.1-29.15 (predecessor to § 15.2-915), said a local ordinance regulating shooting ranges did not violate the preemption statute because it did not regulate any of the listed activities. The 2019 opinion treats gun-shop location zoning the same way.

Common questions

Q: So can a Virginia locality just ban gun shops outright?
A: The opinion does not go that far. It addressed zoning ordinances that "regulat[e] the location of" gun shops, "provided such ordinance is for a permissible purpose and is reasonably related to the governmental purpose it seeks to accomplish." An outright ban would face different constitutional and reasonableness questions.

Q: Can a locality say "no gun shop within 1,000 feet of a school"?
A: That would be a distance-based zoning restriction on location, the kind the opinion treats as permissible in principle. Whether any specific buffer is "reasonable" would depend on the facts (how many alternative locations remain, how the buffer was justified, etc.).

Q: What about regulating what the gun shop sells or how it stores ammunition inside?
A: That is exactly the area § 15.2-915 preempts. The statute bars local ordinances "governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof." Inside-the-store regulation of guns is off-limits; outside-the-store siting of the business is not.

Q: Does this open the door to zoning all kinds of firearm-related uses (ranges, gunsmith shops, training facilities)?
A: A 1994 AG opinion had already concluded that local regulation of shooting ranges did not violate § 15.2-915's predecessor. The 2019 opinion extends similar reasoning to gun-shop locations. Other firearm-related uses would be analyzed the same way: is the locality regulating a location/land-use, or is it regulating one of the protected activities?

Q: Is the existing Salem gun shop next to the Roanoke County school now in trouble?
A: The opinion explicitly stays out of the vested-rights question. Footnote 1 says: "Whether the owner of the gun shop you mention has a vested right in the use of the property currently occupied by the gun shop was not raised in your inquiry and is beyond the scope of this opinion."

Q: What about the Second Amendment?
A: The opinion is purely about state preemption, not the Second Amendment. A zoning rule that effectively kept anyone in a locality from obtaining a firearm could raise federal constitutional questions, but those weren't presented.

Q: How does the Dillon Rule factor in?
A: Localities need an express grant of zoning power, which they have under §§ 15.2-2280 and 15.2-2284. Section 15.2-915 narrows that power as to certain firearms-related activities, but the AG read the preemption narrowly to leave land-use authority intact.

Q: What if a federal court found § 15.2-915 invalid as to siting?
A: That's a different fight. The AG was interpreting the Virginia statute as drafted, not predicting how federal courts would rule on broader Second Amendment challenges.

Citations

The opinion is built on § 15.2-915(A) (firearm preemption), §§ 15.2-2200, 2280, 2283, 2284 (zoning authority), § 15.2-1425 (local ordinances), § 1-248 (Dillon Rule), and a line of Virginia Supreme Court preemption cases (Tiny House, Windy Hill, Resource Conservation Management, Southern Railway). It also cites Peter Garrett Gunsmith v. City of Dayton, 98 S.W.3d 517 (Ky. Ct. App. 2002), as a non-binding but on-point comparator from another state.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/18-069-Rasoul-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Cynthia E. Hudson
Chief Deputy Attorney General

August 23, 2019

The Honorable Sam Rasoul
Member, Virginia House of Delegates
Post Office Box 13842
Roanoke, Virginia 24037

Dear Delegate Rasoul:

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 have asked whether § 15.2-915 of the Code of Virginia precludes a locality from adopting a zoning ordinance that regulates the location of firearms sales facilities.

Background
You relate that a gun shop recently opened in the City of Salem and is located within approximately 100 yards of an elementary school in the County of Roanoke. You state that the patrons of the gun shop often legally carry firearms in and out of the establishment and have a direct line of sight to the school playground and various classrooms. You further relate that neither Salem nor Roanoke has adopted a zoning ordinance regulating the location of gun shops.[1]

Applicable Law and Discussion
The General Assembly enacted § 15.2-915 to prohibit localities from adopting ordinances that restrict the purchase, possession, transfer, ownership, carrying, storage, or transportation of firearms.[2] Section 15.2-915(A) states in relevant part as follows:

No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.[3]

The exercise of a local government's authority, including the adoption of zoning regulations, must not be inconsistent with state law.[4] Relevant to your inquiry, an ordinance is preempted if it is expressly prohibited by state law, or if the state has enacted regulations so comprehensive that the state is considered to have occupied the entire field.[5] In determining whether an ordinance is inconsistent with a statute, the relevant state law must be construed "according to the language used by the legislature,"[6] which is key in determining intent.[7]

The question you present is whether the General Assembly, in enacting § 15.2-915, intended to so invade the field of firearm sales such that local governments are prohibited from exercising their zoning powers in order to regulate the location of establishments selling firearms.[8] Based on Virginia precedent, I am of the opinion that § 15.2-915 does not prohibit localities from adopting such zoning regulations.

By its express terms § 15.2-915 prohibits only those ordinances that govern "the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof." While this language targets specific activities relating to firearms, it does not restrict a locality's authority to control the location of a firearm sales establishment through zoning.[9] In a prior opinion of this Office, it was determined that a local ordinance regulating the operation of shooting ranges did not violate § 15.1-29.15, predecessor to § 15.2-915, because the ordinance did not impose any obligation on the owner of a firearm and did not govern "the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition or components or combination thereof."[10] A similar analysis would apply to a zoning ordinance regulating the location of gun shops in that any such ordinance would not be a prohibitive measure impacting a gun owner's right to purchase or possess a firearm.

It is well established that local governing bodies may adopt and amend zoning ordinances.[11] With respect to your inquiry, § 15.2-2280 states as follows:

Any locality may, by ordinance, classify the territory under its jurisdiction or any substantial portion thereof into districts of such number, shape and size as it may deem best suited to carry out the purposes of this article, and in each district it may regulate, restrict, permit, prohibit, and determine the following:

(1) The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses ....[12]

Similarly, § 15.2-2284 provides that zoning ordinances "shall be drawn and applied with reasonable consideration for ... the suitability of property for various uses ... and the encouragement of the most appropriate use of land throughout the locality."[13] The overarching legislative objective of a zoning ordinance is the protection and promotion of the public health, safety, and welfare.[14] More specifically, a locality is authorized to adopt zoning ordinances "to prevent the use of land in a manner ... deemed detrimental to the general welfare of its inhabitants and deemed as having a deleterious effect on the community."[15]

Section 15.2-915 is not so comprehensive that it demonstrates a clear intent on the part of the legislature to usurp a locality's authority under § 15.2-2280 and § 15.2-2284 to regulate the location of firearms sales businesses. "[W]hen the General Assembly intends to preempt a field, it knows how to express its intention."[16] In City of Norfolk v. Tiny House, Inc., the Supreme Court of Virginia upheld a local zoning ordinance regulating the location of businesses that sell alcoholic beverages, notwithstanding the broad authority given to the Alcoholic Beverage Control (ABC) Commission under state law to regulate the sale and purchase of such beverages. The Court reasoned that if establishments licensed by the ABC Commission were not subject to local zoning restrictions, then the Commission would be empowered to grant a license for the location of an establishment serving alcoholic beverages in a residential neighborhood without any input or approval by the local government.[18] Recognizing the absurdity of this result, the Court found "no manifest intention on the part of the legislature to grant such sweeping and unbridled authority to the ABC Commission."[19] Similarly, in County of Chesterfield v. Windy Hill, Ltd., the Court upheld the issuance of a conditional use permit for a particular use of land with a condition that no alcoholic beverages would be permitted on the property. Following the precedent set in Tiny House, the Court upheld the conditional use permit on a finding that the General Assembly has vested authority in the local governing body to regulate the location of land uses, notwithstanding the exclusive authority of the ABC Board[20] to regulate the sale and purchase of alcoholic beverages in Virginia.[21]

Accordingly, where there is no clear expression of legislative intent to preempt local land use authority, the explicit grant of zoning powers to regulate the use of land and buildings remains in effect.[22] This is consistent with the tenet of statutory construction holding that "[i]f both the statute and ordinance can stand together, courts are obliged to harmonize them, rather than nullifying the ordinance."[23] Of course, zoning regulations must be reasonably suited to the objectives to be accomplished,[24] and those objectives must be consistent with permissible governmental purposes.[25] Zoning ordinances are presumed to be reasonable and valid;[26] however, and in determining whether a particular ordinance is reasonable and consistent with state and federal law, a court will consider the particular facts and circumstances of the case, including legislative intent and the language and effect of the ordinance in question.[27]

Conclusion

It is my opinion that a local government has authority to enact a zoning ordinance regulating the location of establishments that sell firearms, provided such ordinance is for a permissible purpose and is reasonably related to the governmental purpose it seeks to accomplish. Such an ordinance is not prohibited by § 15.2-915 because the statute does not pertain to the location of firearms sales facilities, nor does the statute express a clear intent to preempt local zoning regulations. Whether a particular ordinance is permissible, reasonable, and constitutional are questions to be determined on a case-by-case basis.[28]

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. Whether the owner of the gun shop you mention has a vested right in the use of the property currently occupied by the gun shop was not raised in your inquiry and is beyond the scope of this opinion.

2. See 1994 Op. Va. Att'y Gen. 29, 32 ("Following the [Virginia] Supreme Court's decision in Stallings v. Wall, the General Assembly adopted § 15.1-29.15 [now § 15.2-915] to curtail, in part, ... the broad scope of authority the Court had found localities to have over firearms.").

3. VA. CODE ANN. § 15.2-915(A) (2018).

4. See, e.g., VA. CODE ANN. § 1-248 (2017).

5. See Res. Conservation Mgmt., Inc. v. Bd. of Supvrs., 238 Va. 15, 21-23, 380 S.E.2d 879, 883-84 (1989) (describing express preemption and field preemption).

6. Anderson v. Commonwealth, 182 Va. 560, 565, 29 S.E.2d 838, 840 (1944).

7. See Herrel v. Commonwealth, 28 Va. App. 579, 584, 507 S.E.2d 633, 636 (1998).

8. See Cty. of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 202-06, 559 S.E.2d 627, 629-32 (2002) (exclusive authority of the Alcoholic Beverage Control Board to regulate sale of alcoholic beverages did not preclude a locality from adopting a valid zoning ordinance to regulate the location of an establishment selling alcoholic beverages); Res. Conservation Mgmt., 238 Va. at 20-21, 380 S.E.2d at 882-83 (county's zoning authority to prohibit landfills in certain locations not preempted by Virginia Waste Management Act); City of Norfolk v. Tiny House, Inc., 222 Va. 414, 423-24, 281 S.E.2d 836, 841 (1981) (municipality's zoning authority to regulate the location of an establishment selling alcoholic beverages was not preempted by Alcoholic Beverage Control Act).

9. In dealing with the proper interpretation of a similar state statute, § 65.870 of the Kentucky Revised Statutes, the Court of Appeals of Kentucky found that "the trial court correctly ruled that the statute did not prohibit zoning regulations that affected gun shops.... While the Bellevue and Dayton zoning ordinances regulate the locations where gun shop businesses may operate, they do not occupy any part of the field of regulation of the transfer, ownership, possession, carrying or transportation of firearms, ammunition, or components of firearms or combinations thereof. These ordinances do not represent regulations in the field of firearm regulation prohibited by [the statute]. Rather, they represent regulations in the field of land use, a field of regulation that cities have authority to control." Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky. Ct. App. 2002) (internal citations and quotation marks omitted).

10. 1994 Op. Va. Att'y Gen. 29, 32.

11. See City of Manassas v. Rosson, 224 Va. 12, 17, 294 S.E.2d 799, 801-02 (1982), appeal dismissed, 459 U.S. 1166 (1983) (quoting Bd. of Supvrs. v. Carper, 200 Va. 653, 660, 107 S.E.2d 390, 395 (1959)).

12. VA. CODE ANN. § 15.2-2280 (2018) (emphasis added).

13. VA. CODE ANN. § 15.2-2284 (2018).

14. See VA. CODE ANN. §§ 15.2-2200 (2018); 15.2-2283 (2018).

15. City of Norfolk v. Tiny House, Inc., 222 Va. 414, 424, 281 S.E.2d 836, 842 (1981).

16. Res. Conservation Mgmt., Inc. v. Bd. of Supvrs., 238 Va. 15, 23, 380 S.E.2d 879, 884 (1989).

17. Tiny House, 222 Va. at 422, 281 S.E.2d at 841.

18. Id.

19. The Virginia Alcoholic Beverage Control Commission was renamed the Virginia Alcoholic Beverage Control Board, effective July 1, 1996. See 1985 Va. Acts ch. 448. The Department of Alcoholic Beverage Control was subsequently converted to the Virginia Alcoholic Beverage Control Authority, effective July 1, 2018 and is governed by a Board of Directors. See 2015 Va. Acts ch. 730.

20. Cty. of Chesterfield v. Windy Hill, Ltd., 263 Va. 197, 207, 559 S.E.2d 627, 632 (2002).

21. See, e.g., id. at 204, 559 S.E.2d at 630 ("There is no language in the ABC Act which takes from local governments the powers conferred upon them by zoning statutes to regulate land use."); Res. Conservation Mgmt., 238 Va. at 22, 380 S.E.2d at 883 ("We disagree with the petitioners that, by passage of the [Waste Management] Act, the General Assembly preempted the field of waste management regulation to the extent that a local land use regulation is rendered void."); Tiny House, 222 Va. at 422, 281 S.E.2d at 841 (The General Assembly "did not intend to usurp the ... power of local governments or to prevent them from achieving the orderly use of land through zoning ordinances."); City of Richmond v. S. Ry. Co., 203 Va. 220, 225, 123 S.E.2d 641, 645 (1962) ("[T]he vesting in the [State Corporation] Commission of control over public utilities does not, without more, take from the local governments the powers conferred upon them by zoning statutes."); Va. Alcoholic Bev. Control Auth. v. Bd. of Supvrs., No. 0265-18-4, 2018 WL 5795589, at *11 (Va. Ct. App. Nov. 6, 2018) ("Nothing in the language of either the amendment or the enactment clause [of § 4.1-100] expresses any intent to give the ABC Board any special or expanded authority."); 2015 Op. Va. Att'y Gen. 72, 78 ("[A]ny attempt to preempt zoning powers must be made clear.").

22. Bd. of Supvrs. v. Pumphrey, 221 Va. 205, 207, 269 S.E.2d 361, 362 (1980).

23. City of Manassas v. Rosson, 224 Va. 12, 19-20, 294 S.E.2d 799, 803 (1982), appeal dismissed, 459 U.S. 1166 (1983) (citing Alford v. City of Newport News, 220 Va. 584, 586, 260 S.E.2d 241, 243 (1979)); Tiny House, 222 Va. at 424, 281 S.E.2d at 842; see also 1994 Op. Va. Att'y Gen. 29, 32 (citing Tidewater Homebuilders v. City of Va. Beach, 241 Va. 114, 119, 400 S.E.2d 523, 526 (1991)) ("A locality exercising its ... powers is allowed to use its discretion in selecting the means to do so, as long as the mechanism it chooses is reasonable and does not unduly restrict any constitutional rights").

24. See VA. CODE ANN. §§ 15.2-2200, -2283, -2284.

25. Tiny House, 222 Va. at 419, 281 S.E.2d at 839 (citing Kisley v. City of Falls Church, 212 Va. 693, 607, 187 S.E.2d 168, 171 (1972)).

26. Res. Conservation Mgmt., 238 Va. at 20, 380 S.E.2d at 882.

27. Attorneys General consistently have declined to render opinions on specific factual matters. See 2009 Op. Va. Att'y Gen. 80, 81 and n.17.