Home / Fulltext Opinions / Supreme Court of Virginia / TOWN OF JONESVILLE v. POWELL VALLEY VILLAGE LIMITED PARTNERSHIP (59904)





June 6, 1997
Record Nos. 961738 and 962016





Ford C. Quillen, Judge
Present: All the Justices

In 1989, the Town of Jonesville (the Town) adopted a zoning
ordinance establishing zoning classifications for the entire town
and procedures for enforcing the ordinance. In 1990, pursuant to
the ordinance, Powell Valley Village Limited Partnership applied
for, and received, a zoning permit to construct low and moderate
income residence apartments on land it owned in the Town. The
Town amended its zoning ordinance in 1993 by requiring a special
use permit for buildings with more than six residential units. In
1994, Powell Valley Village Limited Partnership and its general
partner, Hunt & Associates of Virginia, Inc. (collectively
"the Housing Group") applied for a building permit
based on its 1990 zoning permit. Jack Collins, the county
building inspector charged with enforcing the state building code
and town ordinance, ultimately denied the building permit stating
that the Housing Group had to "resubmit" the apartment
project for zoning approval.

The Housing Group filed this action seeking a declaratory
judgment that it had a vested right in the 1990 zoning permit or,
alternatively, that the 1989 zoning ordinance and "all
amendments thereto" were void because the Town had not
adopted a comprehensive plan prior to adoption of the ordinance.
The Housing Group’s pleadings also contained a petition for
issuance of a writ of mandamus to require the county building
inspector to issue a building permit. Following discovery, the
Housing Group filed a motion for summary judgment on its
declaratory judgment count. The trial court, after considering
the briefs and arguments of counsel, granted the Housing Group’s
motion for summary judgment, holding that when the 1989 ordinance
was adopted the Town had not adopted a comprehensive plan
pursuant to Code ?? 15.1-446.1 and -490 and, therefore,
"the zoning ordinance was void ab initio." At a
subsequent hearing on the Housing Group’s petition for mandamus,
the trial court granted the petition and ordered the county
building inspector to issue the building permit upon payment of
the building permit fee. We awarded appeals to the Town and the
county building inspector from both orders and combined the
appeals for review.

The Town and the county building inspector raise a number of
assignments of error on appeal relating to the trial court’s
orders granting the declaratory judgment and the petition for a
writ of mandamus. Many of the issues are interrelated and, for
convenience and clarity, will be considered in categories.

I. Exhaustion of Administrative

Relying on Gayton Triangle Land Co. v. Board of Supervisors
of Henrico County
, 216 Va. 764, 222 S.E.2d 570 (1976), and Phillips
v. Telum, Inc.
, 223 Va. 585, 292 S.E.2d 311 (1982), the Town
argues that the Housing Group had to exhaust its administrative
remedies before it could file a declaratory judgment action or a
petition for mandamus.[1]
Because the Housing Group did not appeal the county building
inspector’s March 1994 decision denying the building permit to
the board of zoning appeals, the Town argues, the trial court
should have dismissed this action.

As a general rule, administrative remedies must be exhausted
before a court will take cognizance of a zoning dispute. Board
of Supervisors of Henrico County v. Market Inns, Inc.
, 228
Va. 82, 86, 319 S.E.2d 737, 739-40 (1984). In Gayton Triangle,
the landowner sought a declaratory judgment that a rezoning
ordinance was unconstitutional as applied to its property. In
holding that the landowner had failed to exhaust its
administrative remedies, the Court reasoned that the restrictive
rezoning could have been remedied by a variance granted by the
board of zoning appeals and until that body acts, "it cannot
be said that the zoning power [had] been fully and finally
applied." 216 Va. at 767, 222 S.E.2d at 573. Similarly, in Phillips,
the contract purchaser of land sought a writ of mandamus when it
was denied a building permit because the county planner
determined that the proposed use was not permitted in the zoning
district. We held that the applicant could not file a petition
for a writ of mandamus because the board of zoning appeals had
the power to interpret the zoning ordinances and, in a case
involving ordinance interpretation, the applicant must
"exhaust administrative remedies by appealing to the
appropriate board of zoning appeals before resorting to court
action." 223 Va. at 589, 292 S.E.2d at 314.

In this case, the Housing Group challenged the validity of the
ordinance based on the Town’s failure to comply with
?? 15.1-446.1 and -490. The authority of zoning
administrators and boards of zoning appeals is prescribed by
statute. Board of Zoning Appeals of James City County v.
University Square Assocs.
, 246 Va. 290, 294, 435 S.E.2d 385,
388 (1993). No statute confers the authority to rule on the
validity of zoning ordinances upon zoning administrators or
boards of zoning appeals. While zoning administrators and boards
of zoning appeals must necessarily interpret zoning ordinances to
execute their responsibilities, that obligation does not give
rise to a power to declare these ordinances invalid. That is a
determination within the sole province of the judiciary. See
Holland v. Johnson, 241 Va. 553, 555-56, 403 S.E.2d 356,
357-58 (1991). Thus, in this case, unlike Gayton Triangle
and Phillips, there was "no administrative remedy
equal to the relief sought" which the Housing Group could
have acquired. Board of Supervisors of James City County v.
, 216 Va. 128, 133, 216 S.E.2d 199, 205 (1975); see
also Notestein v. Board of Supervisors of Appomattox
, 240 Va. 146, 153, 393 S.E.2d 205, 209 (1990).
Accordingly, the Housing Group was not required to appeal the
county building inspector’s determination or to apply for a new
zoning permit under the zoning ordinance as amended in 1993.

II. The Validity of the 1989 Zoning

Municipalities in Virginia can only exercise those powers
expressly or impliedly granted to them and only in the manner
prescribed by the General Assembly. Board of Supervisors of
Fairfax County v. Horne
, 216 Va. 113, 117, 215 S.E.2d 453,
455-56 (1975). Failure to abide by the statutory prescriptions
for the adoption of an ordinance renders the ordinance void ab
. City Council of Alexandria v. Potomac Greens
Assocs. Partnership
, 245 Va. 371, 378, 429 S.E.2d 225, 228

In 1975, the General Assembly enacted legislation which
required all governing bodies in the state to adopt a
comprehensive plan by 1980. ? 15.1-446.1. Such plans must
be reviewed every five years. ? 15.1-454. Section 15.1-490
requires that zoning ordinances be drawn with "reasonable
consideration for" the comprehensive plan. Matthews v.
Board of Zoning Appeals of Greene County
, 218 Va. 270, 277
n.1, 237 S.E.2d 128, 132 n.1 (1977).

The Town asserts that its 1989 zoning ordinance "comports
with every requirement of a comprehensive plan except that it
does [not] have a label that calls it a comprehensive plan."
Relying on cases from other jurisdictions and the provisions of
? 15.1-446.1 which allow a comprehensive plan to include a
zoning ordinance, the Town argues that the contents of the
document should determine whether the document is a comprehensive
plan and, in this case, the Town satisfied the comprehensive plan
requirement when it adopted the 1989 zoning ordinance. The
record, however, does not support the Town’s contention.

A comprehensive plan, as described by the General Assembly, is
general in nature and serves as a guide for the coordinated
development of the territory to meet the present and future needs
of the community and promote the general welfare of its citizens.
? 15.1-446.1. It is a studied plan for zoning, adopted
after consideration of public comment. Id. Prior to its
adoption, a local governing body must conduct studies covering a
wide range of factors including existing land use and
development, trends and growth, population, employment and
economic factors, public facilities, transportation facilities,
and housing needs. ? 15.1-447. The local planning
commission must hold public hearings on the proposed
comprehensive plan, ? 15.1-448, and if approved by the
planning commission, the governing body, after public hearing and
notice, may adopt, amend, or disapprove the plan.
? 15.1-450.

The zoning ordinance in this case, while a comprehensive
zoning regulation, does not contain a number of the elements
required to be included in a comprehensive plan under
? 15.1-446.1, such as "long-range recommendations for
the general development of the territory covered by the
plan" and indications of "where existing lands or
facilities are proposed to be extended, widened, removed, [or] relocated." Furthermore, the record in this case does not
indicate that any of the studies required by ? 15.1-447
were conducted or that the planning commission considered, held
hearings, or recommended the plan to the governing body in
accordance with ? 15.1-448.[2]
Accordingly, we conclude that the 1989 zoning ordinance, as
amended, did not constitute a comprehensive plan under
? 15.1-446.1.

Allowing a municipality to adopt a zoning ordinance without
considering a comprehensive plan, because it does not have such a
plan, would permit manipulation of the zoning statutes and
condone violation of ?? 15.1-446.1, -454, and -490. A
comprehensive plan provides a guideline for future development
and systematic change, reached after consultation with experts
and the public. "[T]he Virginia statutes assure [landowners] that such a change will not be made suddenly, arbitrarily, or
capriciously but only after a period of investigation and
community planning." Board of Supervisors of Fairfax
County v. Snell Constr. Corp.
, 214 Va. 655, 658, 202 S.E.2d
889, 892 (1974). While the Town is correct in its arguments that
neither the statutes nor our prior cases specifically require a
local government to enact a comprehensive plan before it enacts a
zoning ordinance, considering all relevant statutes as we must, Board
of Supervisors of King & Queen County v. Cox
, 155 Va.
687, 707, 156 S.E. 755, 761 (1931), we conclude that
?? 15.1-446.1 through -498 reflect a legislative
prescription for local zoning actions which, after 1980, required
the adoption of a comprehensive plan prior to the adoption of a
zoning ordinance.

III. Remedy

A. Declaratory Judgment Action

The Town urges that, even if the trial court was correct in
declaring the ordinance void ab initio, it nevertheless
erred in failing to suspend its order to allow the Town
sufficient time to take appropriate legislative action. The Town
argues that the result of the trial court’s action is to leave
the Town without any zoning regulations. Under these
circumstances, the Town suggests that the procedure adopted in Board
of Supervisors of James City County v. Rowe
, 216 Va. 128, 216
S.E.2d 199 (1975), should be adopted here. In Rowe, James
City County’s entire zoning ordinance was declared
unconstitutional but, because the effect of the trial court’s
decree "was to leave the land unzoned," the case was
remanded to the trial court with instructions to enter an order
suspending the decree for a period of time during which further
legislative action could be considered. Id. at 148, 216
S.E.2d at 215. Such a procedure, the Town adds, is also
consistent with this Court’s decision in Potomac Greens,
in which, after declaring an amendment to a zoning ordinance of
the City of Alexandria void ab initio for failure to
comply with certain notice requirements, the Court directed that
the decision "shall operate prospectively only, and shall
not affect other amendments enacted prior to our decision in this
case." 245 Va. at 378, 429 S.E.2d at 229.

We agree with the Town’s assertion concerning the prospective
nature of the decision and direct that the holding in this case
— that adoption of a comprehensive plan is a prerequisite to the
adoption of a zoning ordinance — is limited to the instant case
and shall operate prospectively only. See also Perkins
v. County of Albemarle
, 214 Va. 416, 418, 200 S.E.2d 566, 568
(1973). We disagree, however, that suspension of the decision in
this case is consistent with, or required by, our previous cases.

The relief awarded in Rowe was based on facts
materially different from the facts in this case. In Rowe,
the trial court declared a zoning amendment, which rezoned an
area of the county from a B-1 to a B-2 classification,
unconstitutional. The effect of this decision was to leave
unzoned territory that previously had been zoned. Thus, the
decision did not return the territory to the same zoned status it
held prior to the enactment of the unconstitutional zoning
amendment. 216 Va. at 148, 216 S.E.2d at 215. In the instant
case, prior to 1989, the Town had no zoning ordinance at all.
Therefore, the effect of the decision of the trial court is to
return the territory to the same unzoned status it held prior to
the enactment of the void ordinance. See Matthews v.
Board of Zoning Appeals of Greene County
, 218 Va. at 283, 237
S.E.2d at 135-36.

In Potomac Greens, while we directed that our decision
apply prospectively only and that it not affect other amendments
to the city’s zoning ordinance, we held that the zoning amendment
at issue was void ab initio and could not be enforced by
the City of Alexandria. 245 Va. at 378, 429 S.E.2d at 228.
Likewise, the Town’s 1989 zoning ordinance challenged in this
case, including "all amendments thereto," is void ab
and may not be enforced by the Town. Accordingly,
under the facts of this case, we hold that the trial court was
not required to suspend the effective date of its decision until
the Town could take further legislative action.

B. Mandamus

The Town also argues that the trial court erred in issuing a
writ of mandamus because the issuance of the building permit was
not a ministerial function, the building permit fee had not been
paid, and the county building inspector had no authority to issue
the permit. These arguments are not well taken.

The record is clear that the county building inspector denied
the building permit for the sole reason that the Housing Group
did not have a zoning permit under the Town’s zoning ordinance.
When the trial court’s decision eliminated this requirement,
issuing the building permit was "’no longer discretionary
but ministerial and mandatory.’" Phillips, 223 Va. at
591, 292 S.E.2d at 314 (quoting Planning Commission of Falls
Church v. Berman
, 211 Va. 774, 777, 180 S.E.2d 670, 672
(1971)). Additionally, the trial court conditioned the issuance
of the writ upon the Housing Group’s payment of the building
permit fee.

Finally, we reject the Town’s argument that the county
building inspector had no authority to issue the permit once the
ordinance was declared invalid. The county building inspector is
charged with enforcing the Virginia Uniform Statewide Building
Code (the Building Code) in Lee County. The Building Code
requires issuance of a permit prior to construction of any
building to insure that the proposed work conforms to the
requirements of the Building Code. U.S.B.C. ?? 105.1,
109.1 (1994). Towns such as Jonesville, with populations of less
than 3,500, may elect to administer the Building Code; however,
if the town does not so elect, the county in which the town is
located is responsible for the administration and enforcement of
the Building Code. Code ? 36-105. There is nothing in the
1989 zoning ordinance or the record in this case which indicates
that the Town has elected to undertake the responsibility of
administering or enforcing the Building Code. Therefore, the
county building inspector has the authority to issue the permit
in this case.

Accordingly, for the reasons stated, we will affirm the
judgment of the trial court.





This assertion was initially raised in the Town’s special plea to
dismiss. The trial court did not directly rule on the plea, but
the decision of the trial court implicitly ruled on the issue and
denied the plea. Lowry v. Noell, 177 Va. 238, 241, 13
S.E.2d 312, 313 (1941).

The Town does not argue that it was prevented from introducing
such evidence.