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DAIL, et al. v. YORK COUNTY, et al.

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DAIL, et al.



April 21, 2000

Record No. 991591





N. Prentis Smiley, Jr., Judge

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


In this appeal, we consider whether the trial
court properly held that the landowners’ declaratory judgment
action challenging provisions of zoning ordinances addressing
silvicultural activity
[1] was premature because the
landowners had not exhausted available administrative remedies
and, alternatively, that the ordinances were valid.

Anne F. Dail and her son, James T. Dail, III,
(the Dails) own approximately 37 acres of undeveloped, wooded
property in York County. The parcel is zoned RR (Rural
Residential), a zoning classification which allows forestry as a
use of right without a special use permit. The parcel was
enrolled in York County’s land use tax program as land devoted to
forest use.

In January 1998, the Dails informed the York
County Zoning Administrator by letter that they intended to
harvest timber on the tract. The Dails stated that they intended
to comply with the best management practices for forestry
promulgated by the State Forester but did not intend to comply
with certain provisions of ? 24.1-419 of the York County
zoning ordinance, "Standards for Forestry Operations,"
(the Forestry Ordinance). The Dails’ refusal to comply with parts
of the Forestry Ordinance was based on their belief that such
provisions were in conflict with, and preempted by, Code
? 10.1-1126.1.

The zoning administrator responded that if the
Dails harvested the timber without submitting a forest management
plan or maintaining the buffer zone as required by the Forestry
Ordinance, they would be in violation of the county zoning
ordinance and would be subject to the penalties prescribed by

The Dails proceeded to file a bill of complaint
seeking a declaratory judgment and injunctive relief. They
maintained, as they had in their letter to the zoning
administrator, that certain portions of the Forestry Ordinance
were preempted by Code ? 10.1-1126.1 and, therefore, were
invalid and ultra vires. In response to the Dails’
interrogatories, the County stated that the Dails’ timber harvest
proposal would also be subject to two additional sections of the
County’s zoning ordinance: ? 24.1-376, "WMP-Watershed
management and protection area overlay district," (WMP
Ordinance); and ? 24.1-372, "EMA-Environmental
management area overlay district," (EMA Ordinance). Based on
this representation, the Dails filed an amended bill of complaint
expanding their challenge to portions of the WMP and EMA

The County filed a motion to dismiss and a
special plea asserting the Ordinances were valid and that the
Dails’ complaint was premature because they had not exhausted
their administrative remedies. The Dails filed a motion for
summary judgment.

Following argument of counsel, the trial court
entered an order granting the County’s motion to dismiss. The
trial court held that the Dails had failed to exhaust their
administrative remedies and that, "[e]ven if exhaustion of
administrative remedies is not required," the Dails
"conceded that the County’s zoning regulations as they may
be applied to them are not unreasonable, and the Court finds that
the County’s zoning regulations do not conflict with
? 10.1-1126.1, Code of Virginia, are not ultra vires,
and, indeed, are reasonable and necessary, and serve to protect
the health, safety and welfare of the public." The trial
court’s order also denied the Dails’ motion for summary judgment.

On appeal, the Dails assert that the trial
court erred in denying their motion for summary judgment because
(1) they were not required to exhaust their administrative
remedies; (2) state law preempts those provisions of the York
County zoning ordinance that require zoning administrator
approval for timber harvest and that prohibit timber harvest in
certain areas; and (3) the limitations imposed on forestry by the
York County zoning ordinance are invalid because they conflict
with state law. We consider these assertions in order.

I. Exhaustion of Administrative

The threshold matter for determination is
whether the challenge to the zoning ordinance raised by the Dails
required them to exhaust their administrative remedies. The
County argues that without the zoning administrator’s review of
the Dails’ forest management plan, there is no indication of the
extent, if any, that the zoning administrator would restrict the
timber harvest proposed by the Dails. The County further argues
that the Dails’ challenge to the reasonableness of the County’s
ordinance "is properly the subject of an appeal to the BZA
before an action can be instituted in circuit court." We

The requirement that a landowner must exhaust
his administrative remedies before filing a declaratory judgment
action is based on the principle that courts do not address
issues based on circumstances which may never materialize. If the
landowner can obtain a variance or other modification of the
challenged ordinance as applied to his property, the landowner
would no longer be prejudiced by the ordinance and would have no
standing to attack the ordinance. Gayton Triangle Land Co. v.
Henrico County
, 216 Va. 764, 766, 222 S.E.2d 570, 572 (1976).
However, the exhaustion of administrative remedies doctrine does
not apply to circumstances in which the challenge to the
ordinance could not be remedied by a variance or other action of
the County. Bd. of Super. v. Rowe, 216 Va. 128, 133, 216
S.E.2d 199, 205 (1975).

In this case, the Dails do not assert that the
Forestry, EMA, or WMP Ordinances were invalid or unreasonable as
applied to their property.
Rather, the Dails contend that the Ordinances were invalid as
applied to any property satisfying the criteria of Code
? 10.1-1126.1 because the Ordinances conflicted with, and
were preempted by, Code ? 10.1-1126.1. Considering the
Ordinances as invalid local legislation, and ultra vires
acts, the Dails assert that they were not required to comply with
the provisions of the county zoning ordinance in question.

The Dails’ challenge requires a determination
whether the challenged ordinances are valid exercises of the
County’s zoning authority. Neither the zoning administrator nor
the board of zoning appeals has the authority to determine the
validity of a zoning ordinance. Town of Jonesville v. Powell
Valley Village Limited Partnership
, 254 Va. 70, 74, 487
S.E.2d 207, 210 (1997). Therefore, pursuing administrative
remedies could not have resolved the issues presented by the
Dails, and a suit seeking a declaratory judgment was appropriate.
Accordingly, we conclude that the trial court erred in dismissing
the amended bill of complaint for failure to exhaust
administrative remedies.

II. Validity of Ordinances

We now turn to the various challenges the Dails
make regarding the validity of certain portions of the York
County zoning ordinance. Subsection A of Code ? 10.1-1126.1
states that it is a "beneficial and desirable use" of
the forest resources of this Commonwealth to practice forestry
"in accordance" with the best management practices
promulgated by the State Forester. Subsection B of that section
places limitations on the regulations localities can impose on
silvicultural activity conducted on property such as the Dails.
limitations placed on the localities are that the ordinances (1)
may not prohibit or unreasonably limit such silvicultural
activity, (2) may not impose a permit or fee requirement to
engage in such activity, (3) must be "reasonable and
necessary to protect the health, safety and welfare" of the
localities’ residents, and (4) may not "conflict with the
purposes of promoting the growth, continuation and beneficial use
of the Commonwealth’s privately owned forest resources."
Code ? 10.1-1126.1(B).

The Dails assert that a number of the
provisions in the Forestry, EMA, and WMP Ordinances are invalid
because they are preempted by state law or are inconsistent with
state law. Specifically, the Dails assert that the requirement
imposed by the Forestry Ordinance that the zoning administrator
approve a forest management plan before engaging in silvicultural
activities and the provisions in the EMA Ordinance regarding
clear cutting of timber are preempted and invalid because they
directly contravene Code ? 10.1-1126.1(B). The Dails also
contend that even if the provisions regarding clear cutting are
not preempted, they, along with other provisions of the
Ordinances regarding buffer zones, nevertheless are invalid
because they violate state law established for the regulation of
forestry and the protection of water quality in the Commonwealth.

A. Permit Requirement

The Dails assert that the requirement in the
Forestry Ordinance that a forest management plan be approved by
the zoning administrator is in effect a permit requirement and,
therefore, conflicts with the provision of Code
? 10.1-1126.1(B) prohibiting localities from imposing
"permits." We disagree with the Dails’ interpretation
of the statute because it is not supported by the language in the
statute and it relegates the submission and review process
allowed by the statute to one of mere notice filing.

Code ? 10.1-1126.1(B) authorizes a county
zoning administrator to review proposed silvicultural activity to
determine whether it "complies with applicable local zoning
requirements." Allowing proposed activity to be reviewed for
compliance implies that the review process encompasses more than
simply a review of a proposed plan of activity. The statutory
review process includes a component of evaluation and decision
regarding compliance. Describing this decision as an
"approval" in the Forestry Ordinance is consistent with
authorizing the zoning administrator to make such a determination
regarding compliance, and does not create a permit requirement.

The Dails further argue that the compliance
review is limited to determining whether the forestry plan
complies with other zoning ordinances relating to
non-silvicultural activities, such as noise abatement ordinances.
However, there is nothing in the statute that suggests such a
limited interpretation, and nothing in the statute suggests that
the County cannot enact ordinances affecting silvicultural

Therefore, we conclude that the provisions of
the Forestry Ordinance requiring submission and approval of a
forest management plan by the zoning administrator do not impose
a permit requirement for silvicultural activities and therefore
do not contravene, and are not preempted, by Code
? 10.1-1126.1(B).

B. Clear Cutting of Timber

The Dails next turn to the aspects of Code
? 10.1-1126.1(B) which forbid the enactment of local
ordinances that prohibit silvicultural activity. The Dails
maintain that a portion of the EMA Ordinance,
? 24.1-372(e)(5), prohibits clear cutting of timber and,
therefore, is invalid. However, reading the provision challenged
by the Dails in its entirety shows that it is not an absolute
prohibition on clear cutting of timber in areas subject to the
EMA Ordinance.

The portion of the EMA Ordinance challenged by
the Dails states that, in those areas subject to the Ordinance:

Clear cutting of trees shall not be permitted.
However, the zoning administrator may permit selected thinning
based upon best management practices and in accordance with an
approved plan.

? 24.1-372(e)(5), York County Code. We do
not interpret this language as prohibiting silvicultural
activity. This provision is a limitation on clear cutting, which
can be altered by the zoning administrator. Therefore, this
provision does not contravene, and is not preempted by, Code
? 10.1-1126.1(B).

C. Buffer Requirements

Finally, relying on Code ?? 1-13.17,
15.2-1200, and 15.2-2283, the Dails contend that, even if the
provision regarding clear cutting is not preempted, it, along
with other provisions establishing buffer zones, are invalid
because they conflict with, or are inconsistent with, state law.

The Dails assert that the statutory scheme for
regulating silvicultural activity includes delegating to the
State Forester the development of best management practices, Code
? 10.1-1105, and placing the sole authority to enforce and
implement the laws pertaining to forest and woodlands in the
State Forester, Code ?? 10.1-1181.2 and 10.1-1181.3.
Citing Klingbeil Management Group Co. v. Vito, 233 Va.
445, 357 S.E.2d 200 (1987), the Dails conclude that the
provisions of the Ordinances establishing buffer requirements are
invalid because they address these matters of silviculture
activity in a manner that conflicts with the provisions of the
best management practices promulgated by the State Forester.

This conflict, however, does not render the
Ordinance provisions void. A local ordinance may be invalid
because it conflicts with a state regulation if the state
regulation has "the force and effect of law." Loudoun
County v. Pumphrey
, 221 Va. 205, 206-07, 269 S.E.2d 361,
362-63 (1980). The Dails’ argument fails because the best
management practices promulgated by the State Forester do not
have the force and effect of law.

The best management practices are only
guidelines for use in forestry activities. Moreover, the State
Forester’s enforcement authority extends to the issuance of
special orders for silvicultural activity which is causing or is
likely to cause "pollution" or "an alteration of
the physical, chemical or biological properties of any state
waters resulting from sediment deposition presenting an imminent
and substantial danger" to the public health, water supply,
or other endeavors such as recreation or commerce. Code
? 10.1-1181.2(B), (C). The State Forester cannot issue
special orders solely for the violation of a best management
[5] Therefore, the
provisions of the Ordinances establishing buffer zones are not
invalid based on a conflict with the buffer zones suggested by
the best management practices because the best management
practices do not have the force and effect of law.

The Dails make a similar argument regarding the
validity of provisions of the Ordinances which regulate
silvicultural activity for the purposes of maintaining water
quality. The Dails say that the State Water Control Board is the
sole agency authorized to administer the state’s water control
law and to establish standards for protection of state waters.
The Dails argue that the State Water Control Board has recognized
the best management practices for non-point pollutant sources
such as forestry as practices "to be the most effective,
practicable means of preventing or reducing the amount of
non-point source pollutants entering a water course." 9 VAC
25-560-120. These practices, therefore, according to the Dails,
are standards "promulgated as part of an overall scheme
designed to regulate and foster the State’s forestry
industry" and to the extent the Forestry, EMA, and WMP
Ordinances exceed these standards, they are invalid.

As we have just said, the best management
practices are merely guidelines and do not have the force of
state law. State Water Control Board recognition of these
guidelines as preferred methods for maintaining clean water does
not transform them into enforceable regulations. Therefore,
provisions in the challenged Ordinances which conflict with the
best management practices are not invalid on the basis that they
conflict with state law governing water quality.

Finally, we note that in their reply brief, the
Dails argue that the limitations placed on a locality’s general
police powers and zoning authority by Code ? 10.1-1126.1(B)
reflect an intent by the General Assembly to "change the status
," and to impose "the burden upon
localities" if they enact requirements that exceed the best
management practices "to show that the State regulations are
inadequate to protect the health, safety and welfare of their
citizens and that local regulation is necessary to meet
identified shortcomings in the State program."

We reject this invitation to abandon the
presumption of validity afforded a local government ordinance and
to adopt the burden shifting scheme proposed by the Dails. We
find the suggestion particularly inappropriate in this case
because the Ordinances at issue address conditions contained in
guidelines, not in state statutes or regulations, and because
many of the challenged requirements of those Ordinances may be
altered by the zoning administrator. Furthermore, to the extent
that this argument addresses the requirement of Code
? 10.1-1126.1(B) that a locality’s ordinance regulating
silvicultural activity be "reasonable and necessary to
protect the health, safety and welfare" of the locality’s
residents, we will not consider the argument because the Dails
did not assign error to the trial court’s conclusion that the
ordinances "are reasonable and necessary, and serve to
protect the health, safety and welfare of the public."

For the above reasons, we will reverse that
portion of the trial court’s judgment concluding that the Dails
were required to exhaust their administrative remedies, and
affirm that portion of the judgment concluding that the
challenged provisions of the York County zoning ordinance are

Reversed in part, affirmed in part, and
final judgment.




[1] "Silvicultural activity"
means "any forest management activity, including but not
limited to the harvesting of timber, the construction of roads
and trails for forest management purposes, and the preparation of
property for reforestation." Code ? 10.1-1181.1.

[2] The trial court held that the Dails conceded that the
ordinances were not unreasonable as applied to their property and
this holding was not the subject of an assignment of error.

[3] Subsection B of Code
? 10.1-1126.1 applies to silvicultural activity (1)
conducted in a manner which complies with the best management
practices promulgated by the State Forester and (2) located on
property defined as real estate devoted to forestry use under
? 58.1-3230 or in a district established pursuant to
Chapter 43 or 44 of Title 15.2. There is no dispute that the
Dails’ property meets these criteria.

[4] In their reply brief, the Dails
also characterize subsection (e)(2) of the WMP Ordinance and
subsections (f) and (g) of the Forestry Ordinance as amounting to
a prohibition on harvesting timber. Those sections, however, also
allow the zoning administrator to modify the extent of the buffer
zones imposed by those subsections and allow harvesting of

[5] There are certain federally
promulgated best management practices which are mandatory.
However, they do not involve the matters addressed in the
Ordinances at issue in this case and, in no event, would be
relevant to the Dails’ challenge based on preemption or conflict
with state law.