Can a Virginia town ban office-based opioid treatment clinics through zoning, or only regulate where they can be located?

Subject

Whether the Town of Lebanon may ban office-based opioid treatment clinics throughout the Town or instead regulate their location through zoning.

Plain-English summary

Senator Pillion and Commonwealth's Attorney Stoots asked whether Lebanon could use zoning to prohibit office-based opioid treatment (OBOT) clinics everywhere within town limits. The AG answered no. State law permits OBOT programs and clinics, so a total local ban would conflict with that authorization and exceed the Town's zoning power.

The opinion says this limit applies to an express ban and to a total ban produced by improper application of an ordinance that appears valid on its face. It also says state law leaves room for valid zoning that regulates OBOT clinics, including reasonable siting or location restrictions. The AG does not evaluate a particular zoning district, special-use permit, or ordinance.

The AG adds that federal law does not categorically forbid zoning of substance-abuse treatment clinics. Several federal appeals courts have held certain restrictions unlawfully discriminatory under the Americans with Disabilities Act when the government lacked a sufficient public health or safety justification. The opinion says the Fourth Circuit had not directly addressed that question in the public-health-or-safety context.

What this means for you

If you draft local zoning rules

The opinion distinguishes a total prohibition from reasonable siting regulation. It says a complete ban on state-authorized OBOT clinics is beyond the Town's zoning authority, while valid zoning may regulate location. It does not endorse a specific district restriction.

If you operate an OBOT clinic

The opinion concludes that Lebanon may not prohibit every OBOT clinic within its boundaries. It does not determine whether a particular location restriction is reasonable or whether a specific ordinance violates federal law.

Common questions

Can the Town ban OBOT clinics everywhere?
No. The AG says an express ban or a de facto total ban through improper application of zoning would conflict with state law permitting such clinics.

Can the Town regulate clinic locations?
Yes. The opinion says reasonable location or siting restrictions may be enacted through valid zoning, subject to consistency with state law.

Did the AG decide whether industrial-zone placement is lawful?
No. The opinion does not analyze industrial-zone confinement or any other specific zoning designation.

Did the AG decide an ADA claim against Lebanon?
No. It notes federal appellate decisions involving other clinics and leaves the application to any particular town ordinance unresolved.

Background and statutory framework

Virginia Code § 15.2-2280 grants localities broad zoning authority, including power to prohibit land uses generally. The AG explains that the power is limited when a prohibition would conflict with an activity expressly permitted by state law. He concluded that OBOT is such an activity. The state-law answer allows reasonable siting regulation and rejects a total ban; the federal ADA discussion flags a separate concern without deciding a particular case.

Citations and references

• Va. Code § 15.2-2280 (zoning 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/2022/22-027-Pillion-Stoots-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
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

August 8, 2022

The Honorable Todd E. Pillion
Member, Senate of Virginia
851 French Moore Jr. Blvd., Suite 178
Abingdon, Virginia 24210

The Honorable Zack A. Stoots
Russell County Commonwealth's Attorney
Post Office Box 2110
Lebanon, VA 24266

Dear Gentlemen:

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 ask whether the Town of Lebanon may use its zoning powers to prohibit the establishment of clinics specializing in office-based opioid treatment anywhere within the Town. If not, you ask whether the Town may use its zoning powers to otherwise regulate such clinics, to include enacting restrictions on the siting or location of such establishments.

Background

Your request relates to clinics that specialize in office-based opioid treatment. Office-based opioid treatment ("OBOT") is a type of addiction treatment protocol for individuals with opioid use disorder. OBOT programs operate by dispensing or prescribing certain controlled substances (such as buprenorphine or suboxone) in a clinical setting for the treatment of opioid use disorder.

Applicable Law and Discussion

Your first question is whether the Town of Lebanon may use its zoning powers to prohibit the establishment of clinics specializing in office-based opioid treatment anywhere within the Town's boundaries.

The General Assembly has delegated to localities the authority to control land use within their boundaries through zoning. "This delegation of authority . . . is a delegation of the Commonwealth's police power to legislate" in the area of land use. It is well settled that localities have broad discretion in the enactment of zoning ordinances. The Supreme Court of Virginia has stated that "local bodies, because of their knowledge of local conditions and the needs of their individual communities, are allowed wide discretion in the enactment and amendment of zoning ordinances." Moreover, as legislative acts, zoning ordinances enacted by a locality are presumed to be valid, and a court will not substitute its judgment for that of the local governing body where the reasonableness of the ordinance is fairly debatable.

Nevertheless, the zoning powers of a locality are not unlimited, and a locality may not enact zoning restrictions in a manner that is inconsistent with state law. Although § 15.2-2280 of the Code of Virginia permits a locality, as a general matter, to "prohibit" uses of land, the power to prohibit land uses is not absolute. Where prohibition of a particular use throughout a locality would be inconsistent with state law, such a prohibition cannot be sustained. As this Office has previously held: "If an activity is authorized by and conducted in compliance with state law, a Virginia locality cannot impose a ban on that otherwise legal activity."

State law permits the establishment of office-based opioid treatment programs and clinics that specialize in office-based opioid treatment. Enactment of a total ban on such clinics would conflict with state law by prohibiting an activity state law has explicitly authorized. Accordingly, a ban on such clinics within the Town, whether express or by operation of improper application of a facially valid zoning ordinance, would exceed the locality's delegation of zoning authority.

While a total ban would exceed the locality's delegation of zoning authority, there is nothing in state law that would prohibit the Town of Lebanon from otherwise regulating clinics specializing in office-based opioid treatment through the valid use of its zoning powers, including the enactment of reasonable restrictions governing the location or siting of such clinics. "The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements[,] [s]o long as there is no conflict . . . ."

Federal law does not categorically prohibit zoning actions that regulate substance abuse treatment clinics. Several federal courts of appeals have held, however, that certain zoning regulations of substance abuse treatment clinics are unlawfully discriminatory under the Americans with Disabilities Act ("ADA") when the government fails to provide a sufficient public health or safety justification for the regulations. The Fourth Circuit has not directly addressed the question of regulation within the context of public health or safety justifications.

Conclusion

Accordingly, it is my opinion that the Town of Lebanon is not authorized to enact a total prohibition on clinics specializing in office-based opioid treatment within its boundaries. However, there is nothing in state law that would prohibit the Town from otherwise regulating clinics specializing in office-based opioid treatment through the valid use of its zoning powers, including the enactment of reasonable restrictions governing the location or siting of such clinics.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General