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AUGUSTA CTY., et al.



November 5, 1999

Record No. 990031





Duncan M. Byrd, Jr., Judge

Present: Carrico, C.J., Compton, Hassell,
Keenan, Koontz, and Kinser, JJ., and Poff, Senior Justice


In this appeal, we consider whether certain
provisions in a county’s subdivision ordinance violate the Dillon

The facts relevant to our disposition of this
appeal are not in dispute. Countryside Investment Company, L.C.
(Countryside Investment), is the contract purchaser of a parcel
of land consisting of approximately 140 acres located in Augusta
County. The parcel was given an R-10 residential zoning
classification under the Augusta County Zoning Ordinance in
effect in 1973. This ordinance, which established minimum lot
size and minimum floor space requirements, provided for a minimum
lot area of 9,000 square feet for property having an R-10 zoning

In 1995, the Augusta County Board of
Supervisors enacted a new zoning ordinance which prescribed a
minimum lot area requirement of 12,000 square feet. Pursuant to
the terms of the new ordinance, the parcel at issue in this
appeal enjoyed the benefit of a "grandfather" clause
which retained the minimum lot area requirement of 9,000 square
feet for lots which might be subdivided within the parcel until
the year 2006.

In September 1997, Countryside Investment
submitted to the Augusta County Department of Community
Development a master plan for a proposed subdivision of the
parcel which would contain approximately 427 residential lots.
The Department reviewed the master plan and concluded that the
plan complied with the technical requirements of the County’s
Subdivision Ordinance. The Augusta County Planning Commission
reviewed the master plan and unanimously recommended approval by
the Board of Supervisors.

The Board discussed the master plan during
several meetings. The Board also considered comments from the
public and evidence about the impact that the proposed
subdivision would have upon the County’s water and sewer
capacity, public school division, transportation capacities,
drainage, and adjacent neighborhoods.

At a meeting in November 1997, the Board
tentatively denied approval of the master plan. The Board
enumerated several reasons for its tentative denial: (1) "a
subdivision of this size located in an area that is predominantly
rural in character should, consistent with good planning
practice, anticipate, account for and accommodate some of the
needs for non-residential community-type facilities [such as] . . . sites for religious institutions, passive and
active recreational facilities, and day-care centers"; (2)
"the overall density" of the subdivision and "its
potential significant impact on public facilities and public
utilities in the northern sector of Augusta County, should not
exceed a figure of about two residences per acre, or
approximately 270 single-family residences for the entire
tract"; (3) some of the property may not be suitable for
residential development and; the "current proposal to
construct 427 residences . . . would result in an
increase in population that cannot be readily accommodated by the
existing public facilities and utilities serving [that] area."

The Board, in an attempt to modify the master
plan, recommended that Countryside Development: increase the size
of the residential lots; create a "number of large lots of
varying sizes suitable for the construction of community-type
facilities such as churches, nursery schools, and/or day care
centers"; set aside portions of the property "which are
least suitable for development as open space designed to preserve
natural areas where the residents can engage in passive and
active leisure and recreational activities"; and devote
"more space, if necessary, to adequately deal with storm
water drainage and detention."

Countryside Investment initiated this
proceeding against the Board and Augusta County (collectively the
Board) in the circuit court pursuant to Code ? 15.2-2260,
seeking judicial review of the Board’s disapproval of the
preliminary master plan. The Board filed responsive pleadings,
the parties stipulated certain evidence, and the circuit court
conducted an ore tenus hearing.

The circuit court ruled, among other things,
that ?? 21-6 and -7 of the Augusta County Subdivision
Ordinance, upon which the Board relied when it tentatively denied
the master plan, violated the Dillon Rule because those sections
were not authorized by the enabling legislation in Code
?? 15.2-2241 and -2242. The court entered a decree which
ordered approval of the master plan, and enjoined the Board from
taking any action inconsistent with the decree. The Board

Code ? 15.2-2240, which is a part of the
Virginia Land Subdivision and Development Act, states that
"[t]he governing body of every locality shall adopt an
ordinance to assure the orderly subdivision of land and its
[1] Code ? 15.2-2241, which
prescribes the mandatory provisions which must be included in a
subdivision ordinance enacted by a governing body, states in
relevant part:

"A subdivision ordinance shall
include reasonable regulations and provisions that apply
to or provide:

. . . .

"3. For adequate provisions for
drainage and flood control and other public purposes, and
for light and air, and for identifying soil
characteristics; . . . ."

The Board, purportedly relying upon Code
? 15.2-2241, enacted the Augusta County Subdivision
Ordinance which contained the following provisions pertinent to
our resolution of this appeal:

"? 21-6.

"A. All lots shall be of
sufficient size, shape and dimension to meet all the
[zoning] requirements of . . . this Code.

"B. Size and shape of all lots
shall be subject to approval of the Board of Supervisors.
In no case shall the area or dimensions be less than that
required by Chapter 25 or by approved proffered
conditions applicable to any zoning district.

"? 21-7.

"If in the opinion of the Board of
Supervisors any tract of land is unsuitable for
subdivision, it shall not be subdivided. A tract shall be
deemed unsuitable for subdivision if adequate provision
cannot be made for any public purpose, including, but not
limited to: drainage and flood control, protection of
light and air, and the preservation of a rural
environment which is also conducive to a diverse
agricultural, industrial, commercial and residential

The Board argues that the circuit court erred
by holding that ?? 21-6 and -7 of the Subdivision
Ordinance are void because they violate the Dillon Rule.
Continuing, the Board states that when "the General Assembly
has delegated the state’s police power, the locality is not
required to have specific authority for every provision in its
ordinance. Considerable discretion is left to the local
government in such matters." The Board also asserts that
even if specific authority for ?? 21-6 and -7 is
necessary, such authority does exist. Responding, Countryside
Investment asserts that even though the power of subdivision
control is a delegation of the State’s police power to a local
governing body, such authority is subject to statutorily
prescribed limitations; ?? 21-6 and -7 of Augusta County
Subdivision Ordinance exceed those limitations and, thus, violate
the Dillon Rule. We agree with Countryside Investment.

We have held that the General Assembly, in
providing for local control of land subdivision, delegated to
each locality a portion of the police power of this Commonwealth.
National Realty Corp. v. City of Virginia Beach,
209 Va. 172, 174-75, 163 S.E.2d 154, 156 (1968); Bd. of
v. Georgetown Land Co., 204 Va. 380, 383,
131 S.E.2d 290, 292 (1963). However, we have also recognized that
"[t]he power of a municipality, unlike that of the State
legislature, must be exercised pursuant to an express
grant." National Realty Corp., 209 Va. at 175, 163
S.E.2d at 156; see also Bd. of Supervisors
v. Reed’s Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668,
669 (1995); Hylton Enterprises v. Bd. of Supervisors,
220 Va. 435, 440, 258 S.E.2d 577, 581 (1979).

We stated in City of Chesapeake v. Gardner
, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997),
that "[t]he 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
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)."

We specifically discussed the application of
the Dillon Rule to counties in Bd. of Supervisors v. Horne,
216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975):

"In Virginia the powers of boards
of supervisors are fixed by statute and are limited to
those conferred expressly or by necessary implication. Gordon
v. Fairfax County, 207 Va. 827, 832, 153 S.E.2d
270, 274 (1967); Johnson v. Goochland County,
206 Va. 235, 237, 142 S.E.2d 501, 502 (1965). This rule
is a corollary to Dillon’s Rule that municipal
corporations have only those powers expressly granted,
those necessarily or fairly implied therefrom, and those
that are essential and indispensable. City of Richmond
v. County Board, 199 Va. 679, 684-85, 101 S.E.2d
641, 644-45 (1958)."

In National Realty Corp., supra,
we considered whether an ordinance which imposed a fee for the
examination and approval of final subdivision plats and made
payment of the fee a prerequisite to the recording of the plat by
the clerk of the circuit court contravened the Virginia Land
Subdivision and Development Act. In National Realty Corp.,
we acknowledged, as we recognize here, that the General Assembly,
in providing for local control of land subdivision, delegated a
portion of its police power to local governing bodies. Provisions
in a local subdivision ordinance, however, must derive power from
an authorization from the General Assembly. 209 Va. at 177, 163
S.E.2d at 157-58. Since the local governing body was not
empowered to impose the fee, we held the ordinance invalid. Id.,
163 S.E.2d at 158.

We hold that ?? 21-6 and -7 of the
County’s Subdivision Ordinance are void because the General
Assembly did not authorize the Board to enact the challenged
requirements in a subdivision ordinance. Neither Code
? 15.2-2241, which prescribes the mandatory provisions
which must be included in a subdivision ordinance, nor Code
? 15.2-2242, which prescribes optional provisions that may
be included in a subdivision ordinance, authorizes a governing
body to enact provisions in a subdivision ordinance which specify
the size and shapes of lots to be subdivided. Additionally,
neither Code ? 15.2-2241 nor -2242 authorizes a governing
body to prohibit a subdivision of property if the proposed
subdivision is not conducive to the preservation of a rural

The Board asserts that it has considerable
discretion when deciding what to include in a subdivision
ordinance. We disagree. As we have already stated, pursuant to
the strict construction required by the Dillon Rule, the Board
does not have unfettered discretion when deciding what matters it
may include in its subdivision ordinance. Rather, the Board must
include those requisites which are mandated in Code
? 15.2-2241 and may, at the Board’s discretion, include the
optional provisions of a subdivision ordinance contained in Code
? 15.2-2242. Additionally, the Board is entitled to
exercise discretion only to the extent permitted by Code
?? 15.2-2241 and -2242. See Helmick v. Town
of Warrenton
, 254 Va. 225, 232-33, 492 S.E.2d 113, 117
(1997). The Board is not, however, permitted to ignore the
requisites contained in Code ?? 15.2-2241 and -2242 and,
under the guise of a subdivision ordinance, enact standards which
would effectively permit it to rezone property in a manner
inconsistent with the uses permitted by the property’s zoning

We find no merit in the Board’s argument that
Code ? 15.2-2200 authorizes the challenged provisions in
the County’s Subdivision Ordinance. Code ? 15.2-2200

"This chapter is intended to
encourage localities to improve the public health,
safety, convenience and welfare of its citizens and to
plan for the future development of communities to the end
that transportation systems be carefully planned; that
new community centers be developed with adequate highway,
utility, health, educational, and recreational
facilities; that the need for mineral resources and the
needs of agriculture, industry and business be recognized
in future growth; that residential areas be provided with
healthy surroundings for family life; that agricultural
and forestal land be preserved; and that the growth of
the community be consonant with the efficient and
economical use of public funds."

This statute, a general declaration of the
General Assembly’s intent for Chapter 22 of Title 15.2 concerning
planning, subdivision of land, and zoning, does not confer upon
the Board the power to enact a subdivision ordinance which is
more expansive than the enumerated requisites contained in Code
?? 15.2-2241 and -2242.

In view of the foregoing, we do not consider
the Board’s remaining assignments of error or Countryside
Investment’s assignments of cross-error. Accordingly, we will
affirm the decree of the circuit court.




[1] The Virginia Land Subdivision and
Development Act consists of Code ?? 15.2-2240 through

[2] Our holding does not
impair the County’s power to enact zoning ordinances which
prescribe minimum lot area requirements, Code ? 15.2-2280,
or standards which would permit the County to consider the rural
character of a community when making zoning decisions, Code
? 15.2-2283; Byrum v. Board of Supervisors,
217 Va. 37, 39, 225 S.E.2d 369, 371 (1976).