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CITY COUNCIL OF ALEXANDRIA v. THE LINDSEY TRUSTS



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CITY COUNCIL OF ALEXANDRIA

v.

THE LINDSEY TRUSTS


September 17, 1999

Record No. 982573

 

THE CITY COUNCIL OF ALEXANDRIA

v.

THE LINDSEY TRUSTS

 

FROM THE CIRCUIT COURT OF THE CITY OF
ALEXANDRIA

John E. Kloch, Judge

PRESENT: Carrico, C.J., Compton, Lacy, Hassell,
Keenan, and Koontz, JJ., and Whiting, Senior Justice

OPINION BY SENIOR JUSTICE HENRY H. WHITING


In this appeal, we decide whether a city
charter authorizes the city to adopt a zoning ordinance that
modifies the "grandfathered" rights of property owners.

Carol A. Lindsey and Riggs Bank, co-trustees of
The Lindsey Trusts and owners of property located at 101-103 King
Street in Alexandria (collectively, the Property Owners), brought
this declaratory judgment action against the City of Alexandria,
its city council, mayor, and council members (collectively, the
City). The Property Owners sought to have the court declare part
of an amendment to the Alexandria zoning ordinance null and void
because the City’s charter did not authorize its enactment.

Upon considering the parties’ stipulated facts,
and oral and written argument, the court agreed with the Property
Owners and entered a declaratory judgment declaring the contested
part of the zoning amendment void and unenforceable. The City
appeals.

In 1976, the Old Town Food Service Corporation
began operating the Fish Market Restaurant at 105 King Street as
a use that was allowed by right under the existing zoning
ordinance. In May 1979, the City amended its zoning ordinance to
require a special use permit for the operation of restaurants.
However, restaurants such as the Fish Market Restaurant that were
then operating without a special use permit were excepted from
the amendment’s requirement, and were therefore considered
"grandfathered" uses.

Afterward, but some time before February 1983,
the Fish Market Restaurant expanded its operations into the
adjacent buildings located at 101 and 103 King Street. In
February 1983, the zoning ordinance was again amended to provide
that:

For any use now requiring a special use
permit, regardless of whether or not a special use permit
has been granted previously, the enlargement, extension
or increase in the intensity of that use shall
require a separate special use permit.

Alexandria Code ? 7-6-193 (emphasis
added).

In 1994 and 1995, this portion of the ordinance
was amended to provide:

For any use that now requires a special
use permit, whether or not a special use permit has been
granted previously, any change in the nature of the use
or any enlargement, extension or increase in the
intensity
of that use shall require a separate
special use permit.

Alexandria Ordinances 3711 (1994) and 3800
(1995)(emphasis added).

In 1996, when the lessee ceased its operations
and vacated the 101 and 103 King Street locations (the Premises),
the Property Owners attempted to lease the Premises to another
restaurant tenant. Modifications of the premises were necessary
to operate a restaurant independent of the operation of the
restaurant at 105 King Street. Because the City regarded those
modifications as an intensification of the use of the Premises,
it advised the Property Owners that a special use permit would be
required.

The Property Owners brought this declaratory
judgment action to determine whether the city charter authorized
the City to enact the intensification-of-use provision of the
zoning ordinance. The trial court agreed with the Property Owners
that, since there was no such authorization, the contested
portion of the zoning ordinance was void and unenforceable as a
violation of Dillon’s Rule. Accordingly, the court entered a
declaratory judgment to that effect and the City appeals.

The Property Owners contend that the court
correctly applied Dillon’s Rule, which we have described in the
following language:

The Dillon Rule of strict construction
controls our determination of the powers of local
governing bodies. This rule provides that municipal
corporations have only those powers that are expressly
granted, those necessarily or fairly implied from
expressly granted powers, and those that are essential
and indispensable. Ticonderoga Farms v. County of
Loudoun
, 242 Va. 170, 173-74, 409 S.E.2d 446, 448
(1991); City of Richmond v. Confrere Club of Richmond,
239 Va. 77, 79, 387 S.E.2d 471, 473 (1990). When a local
ordinance exceeds the scope of this authority, the
ordinance is invalid. See City of Richmond, 239
Va. at 80, 387 S.E.2d at 473; Tabler v. Board of
Supervisors
, 221 Va. 200, 204, 269 S.E.2d 358, 361
(1980).

City of Chesapeake v. Gardner Enterprises,
Inc.
, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997).

We turn to the charter to ascertain whether the
legislature has given the City the requisite authority. Section
9.09 of the charter gives the City the power to adopt a
comprehensive zoning plan, which shall provide for the regulation
and restriction of the use of land, buildings and structures in
the respective zones and may include but shall not be limited to
the following:

(g) It may . . . require that
such [nonconforming] buildings or structures and the use
thereof shall conform to the regulations and restrictions
prescribed for the zone or zones in which they are
situated whenever they are enlarged, extended,
reconstructed or structurally altered; and may require
that such buildings or structures and the use thereof
shall conform to the regulations and restrictions
prescribed for the zone or zones in which they are
situated, in any event within a reasonable period of time
to be specified in the ordinance
.

Alexandria City Charter ? 9.09 (emphasis
added).

The parties agree that charter provisions such
as ? 9.09 "must be construed to be a qualified
amendment of the general law, and controlling in the locality to
which it applies." Pierce v. Dennis, 205 Va. 478,
484, 138 S.E.2d 6, 15 (1964).

Among other things, the City argues that since
? 9.09 of the charter specifically authorizes the eventual
termination of existing uses that do not conform to zoning
amendments, it necessarily includes the power to regulate those
uses. The Property Owners counter by claiming that the City had
no express or implied charter power to regulate the
intensification of "grandfathered" uses. They argue
that the charter’s enumeration of the powers to regulate the
enlargement, extension, reconstruction, or structural alteration
of such buildings or their uses necessarily excludes the power to
regulate the intensification of their use.

In Ticonderoga Farms, Inc. v. County of
Loudoun
, 242 Va. 170, 174, 409 S.E.2d 446, 448 (1991), we
held that a county’s power to prohibit solid waste disposal
activities necessarily included the power to regulate those
activities. But, as we noted in Ticonderoga Farms,
"[c]onditions imposed upon the exercise of an act which a
governmental body has the power to prohibit may not, of course,
be arbitrary, capricious, or impair constitutional rights."
242 Va. at 174-75, 409 S.E.2d at 448.

Here, had the City chosen to treat restaurants
operating with no special use permit as nonconforming uses, it
could have required the termination of their operation after a
reasonable period of time under the powers given it by
? 9.09(g) of its charter. However, the City chose not to
exercise that power in 1979. Instead, its ordinance provided that
existing restaurants "shall not be subject to this special
use permit requirement, nor shall they be deemed nonconforming as
result of this special use permit requirement." Later, it
decided to exercise its power to regulate the uses of such
restaurants by requiring special use permits should the
restaurants be expanded or their use intensified. Because the
City had the power to terminate such "grandfathered"
uses, we conclude that it also had the power to regulate them and
that it exercised that power by enacting and enforcing an
ordinance requiring a special use permit should the use be
intensified.

The Property Owners also contend that because
their use was not a nonconforming use but a
"grandfathered" one expressly exempted from the
requirements of the earlier zoning ordinance, the City had no
authority to affect those rights. We do not agree with the
Property Owners.

The Property Owners’ use became what the
parties have described as a "grandfathered" use when
the city council chose not to classify it as nonconforming by
excepting such a use from the requirements of the amended
ordinance. However, the Property Owners had no vested right in
the continuation of their property’s "grandfathered"
status protecting them against the application of an amended
zoning ordinance. See Board of Zoning Appeals of Bland
County v. CaseLin Systems, Inc.
, 256 Va. 206, 210, 501 S.E.2d
397, 400 (1998)(noting that property owners have no vested
property right in the continuation of their property’s existing
zoning status).

The ordinance in question seeks only to
regulate future changes in the use of the restaurant and does not
attempt to modify already existing uses. Hence, we find no merit
in this contention.*

Accordingly, we will reverse the declaratory
judgment of the trial court and enter a final judgment that the
City had the authority to enact the contested amendments to the
zoning ordinance.

Reversed and final judgment.

 

* We have examined and find no merit
in the remaining contentions of the Property Owners.

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