708 S.E.2d 841
Va.2011Background
- Jennings Boatyard Marina owns riparian land in Northumberland County fronting Cockrell's Creek and seeks to add 31–46 deep-water mooring slips beyond mean low-water mark.
- The proposed project would sit 300–400 feet seaward of the mean low-water mark and require a county special exception permit.
- The Board denied Jennings' special exemption permit after a hearing, citing existing marinas and lack of justification to expand.
- Jennings sought declaratory relief claiming VMRC has exclusive authority over bottomlands and that the county zoning ordinance governing the permit is void or invalid.
- The circuit court held that the county has zoning jurisdiction over the upland and the project extending to the mean low-water mark, with VMRC retaining exclusive authority only over certain bottomland uses; the NZO provision at issue was not void for lack of standards, and the relief was denied.
- Jennings appealed challenging the extent of zoning authority and the validity of the special-exemption standards; the Supreme Court affirmed the circuit court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does county zoning extend to regulate piers beyond MLW? | Jennings contends VMRC exclusive control; county cannot regulate. | Board asserts concurrent authority to zone pier construction seaward of MLW. | Yes; county zoning embraces piers seaward of MLW; concurrent with VMRC. |
| Is VMRC exclusively authorized to regulate bottomlands beyond MLW? | VMRC has exclusive permit authority under VMRC statutes. | VMRC authority is not exclusive where local zoning applies to the project. | No; concurrent authority exists, with zoning valid over the project. |
| Is NZO § 148-138(A) void-for-lack-of-standards for special exceptions? | Ordinance lacks objective standards guiding Board decisions. | Case law permits such language; standards are present in framework. | Not void; standards adequate under Bollinger and Cole analyses. |
| Does the NZO grant of authority to issue special exceptions violate legal standards for zoning? | Reservation of broad discretion undermines zoning purposes. | Language mirrors Bollinger; proper delegation with framework. | Not void; consistent with Bollinger and Cole; proper delegation. |
Key Cases Cited
- Bollinger v. Board of Supervisors, 217 Va. 185, 227 S.E.2d 682 (1976) (standards for issuing conditional use permits; legislative-like delegation)
- Cole v. City Council, 218 Va. 827, 241 S.E.2d 765 (1978) (void special exception ordinance reserving discretionary authority)
- Ames v. Town of Painter, 239 Va. 343, 389 S.E.2d 702 (1990) (delegations of legislative power require specific policies and standards)
- Scott v. Burwell's Bay Improvement Ass'n, 281 Va. 704, 708 S.E.2d 858 (2011) (context on property boundaries and bottomlands ownership)