MARBLE TECHNOLOGIES v. City of HamptonMARBLE TECHNOLOGIES v. City of Hampton
OPINION BY JUSTICE CYNTHIA D. KINSER
This appeal involves the Chesapeake Bay Preservation Act,
MATERIAL FACTS AND PROCEEDINGS
The Act requires, inter alia, “the counties, cities, and towns of Tidewater Virginia [to] incorporate general water quality protection measures into their comprehensive plans, zoning ordinances, and subdivision ordinances.”
Pursuant to this authority, the Board promulgated criteria for a locality to utilize in designating lands within its jurisdiction to be included in an RPA.
A. At a minimum, Resource Protection Areas shall consist of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may cause significant degradation to the quality of state waters. In their natural condition, these lands provide for the removal, reduction or assimilation of sediments, nutrients and potentially harmful or
toxic substances in runoff entering the bay and its tributaries, and minimize the adverse effects of human activities on state waters and aquatic resources. B. The Resource Protection Area shall include:
- Tidal wetlands;
- Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow;
- Tidal shores;
- Such other lands considered by the local government to meet the provisions of subsection A of this section and to be necessary to protect the quality of state waters; and
- A buffer area not less than 100 feet in width located adjacent to and landward of the components listed in subdivisions 1 through 4 above, and along both sides of any water body with perennial flow.
As directed by
also amended its buffer area requirements for RPAs to incorporate the new definition. City Zoning Ordinance § 17.3-64(2)(b)(iii)(3).
Marble Technologies, Inc. and Shri Ganesh, LLC (collectively, the plaintiffs), own two separate parcels of land located in the “Grand View” section of the City. According to the plaintiffs, the “developable area” of their parcels was not included in an RPA or its buffer area prior to the 2008 amendment to the City zoning ordinance. Following the amendment, the plaintiffs’ parcels fell entirely “within the RPA portion of the City‘s Chesapeake Bay Preservation District” because the parcels are included in the Coastal Barrier Resources System. The plaintiffs contend that their parcels are thus subject to additional development restrictions.5
Shortly after the amendment‘s passage, the plaintiffs filed a complaint seeking “declaratory and injunctive relief prohibiting the City‘s enforcement of the amendment as it
applies to the [p]laintiffs’ property.”6 The plaintiffs alleged, among other things, that the City had “exceeded its authority in violation of Virginia law and Dillon‘s [R]ule.” In response, the City demurred, arguing that the plaintiffs could not prevail because
The plaintiffs countered that the “arbitrary and capricious standard only arises in ‘as applied’ challenges,” which they were not making. Instead, the plaintiffs maintained that they were seeking a declaration that the 2008 amendment violates Dillon‘s Rule and is therefore void. According to the plaintiffs, the exhaustion of administrative remedies rule was also not applicable because they were claiming the City exceeded its authority. Finally, the plaintiffs asserted that they had “alleged sufficient facts to request either preliminary or permanent injunctive relief.”
Following a hearing, the circuit court overruled in part and sustained in part the City‘s demurrer, dismissing with prejudice the plaintiffs’ request for injunctive relief. The court explained that an injunction would be unnecessary if the plaintiffs obtained declaratory relief. Thus, the circuit court stated that “the sole issue” that remained was “whether the City acted ultra vires in passing this amendment to the zoning ordinance.” Shortly thereafter, the City answered the complaint, and the parties filed motions for summary judgment.
In support of their motion for summary judgment, the plaintiffs argued that the 2008 zoning “[a]mendment impermissibly permits the federal government to alter the City‘s zoning scheme without further action of the City Council in violation of the Dillon Rule,” as the General Assembly has not “express[ly] or implcit[ly] grant[ed localities the] authority to delegate any portion of” the responsibility for designating RPAs within the locality‘s jurisdiction. The plaintiffs maintained that because the General Assembly authorized only localities to designate lands subject to the Act‘s restrictions, the City did not have authority to incorporate land into an RPA by referencing the Coastal Barrier Resources System. The City, however, maintained that the General Assembly had “expressly and implicitly grant[ed] the City the power to enact the challenged ordinances, which must be ‘presumed valid and constitutional.‘”8 The plaintiffs countered that the presumption of validity urged by the City “does not apply to a court‘s determination under the Dillon Rule as to whether the locality has any authority to act,” and that the City had not been granted the authority claimed.
After a hearing on the motions for summary judgment, the circuit court held that “the amendment is valid [and] does not violate Dillon‘s Rule” because “[t]he statute gives [the City] [this] authority.” The court concluded that the City possessed “both” express and implied authority to pass the 2008 amendment. Accordingly, the circuit court granted the City‘s motion for summary judgment, denied the plaintiffs’ motion, and entered judgment for the City. This appeal followed.
ANALYSIS
The issue we decide is whether the General Assembly expressly and/or impliedly authorized localities, through the Act or the regulations passed pursuant thereto, to utilize as a criterion for designating lands to be included in an RPA whether particular land is part of the federal Act‘s Coastal Barrier Resources System. This issue is one of law, which we review de novo.9 Board of Zoning Appeals v. Board of Supervisors, 276 Va. 550, 552, 666 S.E.2d 315, 316 (2008).
Contrary to the City‘s argument that the zoning amendment at issue, as the legislative enactment of a locality, must be presumed valid unless proven to be clearly unreasonable, arbitrary, or capricious, “the Dillon Rule is applicable to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end.”10 Commonwealth v. Board of Arlington County, 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977);
see also City Council of Alexandria v. Lindsey Trusts, 258 Va. 424, 427, 520 S.E.2d 181, 182 (1999) (“‘The Dillon Rule of strict construction controls our determination of the powers of local governing bodies.‘“) (citation omitted).
The Dillon 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.” Board of Zoning Appeals, 276 Va. at 553-54, 666 S.E.2d at 317; accord Board of Supervisors v. Countryside Investment Co., 258 Va. 497, 502-05, 522 S.E.2d 610, 612-14 (1999); City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990). This is so because “[a] municipal corporation has no element of sovereignty. It is a mere local agency of the state, having no other powers than such as are clearly and unmistakably granted by the law-making power.” Whiting v. Town of West Point, 88 Va. 905, 906, 14 S.E. 698, 699 (1892); see Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907) (“Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.“). Thus, “[i]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body.” Board of Supervisors v. Reed‘s Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995); accord Confrere Club, 239 Va. at 79-80, 387 S.E.2d at 473; City of Winchester v. Redmond, 93 Va. 711, 714, 25 S.E. 1001, 1002 (1896).
In applying the Dillon Rule, we first examine the plain terms of the legislative enactment to determine whether the General Assembly expressly granted a particular power to the municipal corporation. See City of Chesapeake v. Gardner Enters., 253 Va. 243, 246-47, 482 S.E.2d 812, 814-15 (1997). If the power is not expressly granted, we then “determine whether the power . . . is necessarily or fairly implied from the powers expressly granted by the statute.” Id. at 247, 482 S.E.2d at 815. “To imply a particular power from a power expressly granted, it must be found that the legislature intended that the grant of the express also would confer the implied.” Board of Arlington County, 217 Va. at 577, 232 S.E.2d at 42. “Questions concerning implied legislative authority of a local governing body are resolved by analyzing the legislative intent of the General Assembly.” Tabler v. Board of Supervisors, 221 Va. 200, 202, 269 S.E.2d 358, 360 (1980). “Legislative intent is determined from the plain meaning of the words used.” Confrere Club, 239 Va. at 80, 387 S.E.2d at 473; see Logan v. City Council, 275 Va. 483, 492, 659 S.E.2d 296, 301 (2008) (“We determine the General Assembly‘s intent from the words employed in the statutes.“). Thus, “[t]he central focus of our analysis [in applying the Dillon Rule] is to ascertain and give
With these principles in mind, we proceed to the question before us: whether the General Assembly expressly or impliedly authorized the City to use as a criterion for designating RPAs in its jurisdiction whether particular land is included in the Coastal Barrier Resources System pursuant to the federal Act. The General Assembly expressly authorized counties, cities, and towns “to exercise their police and zoning powers to protect the quality of state waters consistent with the provisions” of the Act.
In relevant part, the Board‘s criteria require a locality to include in an RPA the following components:
- Tidal wetlands;
- Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow;
- Tidal shores;
- Such other lands considered by the local government to meet the provisions of subsection A of this section and to be necessary to protect the quality of state waters; and
- A buffer area not less than 100 feet in width located adjacent to and landward of the components listed in subdivisions 1 through 4 above, and along both sides of any water body with perennial flow.
In sum, the Board‘s criteria mandate that certain lands be included in an RPA and authorize the inclusion of “other lands” that both “meet the provisions of subsection A” and are “necessary to protect the quality of state waters.”12 After designating lands encompassed
The foregoing review demonstrates that the General Assembly, acting through the Board, neither expressly nor impliedly granted localities the authority to designate RPAs based on criteria established by the federal government. Instead, the designations must be based on criteria established by the Board. See
The City argues that its inclusion of lands covered by the federal Act in the buffer area is authorized by the “other
lands” component, subdivision (4) of
Thus, the City ordinance, which makes inclusion in the Coastal Barrier Resources System a criterion for designating lands part of an RPA, violates the General Assembly‘s express mandate that a locality “use the criteria developed by the Board to determine the extent of the Chesapeake Bay Preservation Area within [its] jurisdiction[].”14
CONCLUSION
For these reasons, we will reverse the judgment of the circuit court and enter final judgment in favor of Marble Technologies, Inc. and Shri Ganesh, LLC.15
Reversed and final judgment.