16.11 Procedural Issues

• Library: Real Estate Transactions in Virginia (Virginia CLE) (2019 Ed.)

16.11 PROCEDURAL ISSUES

16.1101 In General.

A. Dillon's Rule. Any discussion of the powers of Virginia's local governments to regulate land use must include a review of the implications of Dillon's Rule. ³⁰² Dillon's Rule is quite vigorous in Virginia. In 1969 and 1970, during preparation of the current Constitution of Virginia, consideration was given to repudiating Dillon's Rule, ³⁰³ but no such provision was incorporated in the new Constitution, and the Virginia Supreme Court has interpreted that omission as a reaffirmation of the Rule in Virginia. ³⁰⁴

Dillon's Rule is set forth in detail in Commonwealth v. County Bd. of Arlington Cnty.³⁰⁵ : localities have only those powers that are (i) expressly granted, (ii) necessarily or fairly implied from express grants, and (iii) essential and indispensable. The court looks to the purpose and objective of statutes in considering whether authority is necessarily implied from powers

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expressly granted. ³⁰⁶ The force of Dillon's Rule in Virginia is evident from the strictness with which the Virginia Supreme Court has applied the Rule. Unless the General Assembly has provided an express grant of the power in question, the court rarely upholds local authority to exercise that power. ³⁰⁷ If there is a reasonable doubt as to whether legislative power exists, the doubt must be resolved against the existence of the asserted authority. ³⁰⁸

Thus, in the period between 2012 and 2015, the Attorney General has issued five opinions (i) limiting or denying the power of localities to prohibit oil and gas exploration; ³⁰⁹ (ii) to impose more stringent regulation on alternative onsite sewage systems than adopted by the Virginia Department of Health; ³¹⁰ (iii) to regulate wineries; ³¹¹ (iv) to use zoning ordinances to regulate advertising on bicycles; ³¹² and (v) to regulate uranium mining. ³¹³

B. General Notice Requirements. Compliance with the notice requirements set out in the enabling legislation, and in some cases in local charters, is the sine qua non of all land use actions of a legislative nature. This includes, of course, all matters that are taken to the Board of Zoning Appeals. ³¹⁴

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The Virginia Code states that all plans or ordinances, or amendments thereof, recommended or adopted under the powers conferred by the enabling legislation need not be advertised in full but may be advertised by reference with a descriptive summary of the proposed action and a reference to the place or places within the county or municipality where copies of the proposed plans, ordinances, or amendments may be examined. ³¹⁵

C. Public Notice. The planning commission may not recommend, nor the governing body adopt, any plan, ordinance, or amendment until notice of intention to do so has been published once a week for two successive weeks in a newspaper published or having general circulation in the locality; however, the notice for the local commission and the governing body may be published concurrently. The notice must specify the time and place of the hearing at which persons affected may appear and present their views. The hearing must be held not less than 5 days or more than 21 days after the second advertisement appears in the newspaper. The commission and governing body may hold a joint public hearing after public notice. If a joint hearing is held, only the public body needs to give public notice. The term "two successive weeks" means that notice must be published at least twice in an appropriate newspaper with not less than six days elapsing between the first and second publication. ³¹⁶

D. Notice to Property Owners. Section 15.2-2204(B) of the Virginia Code establishes detailed requirements for notice to adjacent property owners. When a proposed amendment of the zoning ordinance involves a change in the zoning classification of 25 or fewer parcels of land, then in addition to public notice, written notice must be given by the commission or its representative at least five days before the hearing to the owner or owners, their agent, or the occupant of each parcel involved and to the owners, their agent, or the occupant of all abutting property and property immediately across the street or road from the property affected, including parcels that lie in other localities of the commonwealth. If any portion of the affected property is within a planned unit development, written notice must also be given to any incorporated property owners' associations within the

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planned unit development that have members owning property located within 2,000 feet of the affected property. ³¹⁷ Notice may be sent by registered or certified mail to the last known address of an owner as shown on the current real estate tax assessment books or current real estate tax assessment records. If the hearing is continued, notice must be remailed. Costs of any notice required under this chapter are taxed to the applicant.

When a proposed amendment of the zoning ordinance involves a change in the zoning map classification of more than 25 parcels of land, or a change to the applicable zoning ordinance text regulations that decreases the allowed dwelling unit density of any parcel of land, then in addition to public notice, written notice must be given by the local commission or its representative at least five days before the hearing to the owners or owners' agents of each parcel of land involved. ³¹⁸ One notice sent by first-class mail to the last known address of the owner as shown on the current real estate tax assessment books or records is adequate, provided that a representative of the local commission affirms by properly filed affidavit that the mailings have been made. Inadvertent failure by the representative of the local commission to give written notice does not invalidate the adoption of the amendment or ordinance.

The governing body may provide that, in the case of a condominium or a cooperative, the written notice may be mailed to the unit owners' association or proprietary lessees' association, respectively, in lieu of each individual unit owner. Reliance upon records of the local real estate assessor's office to ascertain the names of persons entitled to notice is deemed sufficient.

Whenever the required notices are sent by an agency, department, or division of the local governing body or its representative, the notices may be sent by first class mail provided that a representative of the agency, department, or division affirms by properly filed affidavit that the mailings have been made.

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A party's actual notice of, or active participation in, the proceedings for which the written notice is required waives that party's right to receive written notice.

E. Notice of Actions Within One-Half Mile of Adjoining Jurisdiction. When a proposed comprehensive plan or amendment, a proposed change in zoning map classification, or an application for a special exception for a change in use or to increase by greater than 50 percent the bulk or height of an existing or proposed building involves any parcel of land located within one-half mile of a boundary of an adjoining Virginia county or municipality, then in addition to the foregoing notice, written notice shall also be given by the commission or its representative at least 10 days before the hearing to the chief administrative officer of that locality. This requirement does not apply to renewals of previously approved special exceptions. ³¹⁹

16.1102 Notice by Applicant; Applicant Who Is Not Owner of Subject Property. The governing body of any locality may require that a person applying for local approval be responsible for all notices, and those notices must comply with section 15.2-2206 of the Virginia Code.

The governing body may provide that, in the case of a condominium or cooperative, the written notice be mailed to the unit owners' association or proprietary lessees' association, respectively, in lieu of each individual unit owner. Reliance on records of the local real estate assessor's office to ascertain the names of persons entitled to notice is deemed sufficient.

A certification of notice and a list of the persons to whom notice has been sent must be supplied by the applicant as required by the local governing body at least five days before the first hearing. The governing body must allow any person entitled to notice to waive such right in writing.

When an applicant who is not the owner, or agent of the owner, of real property requests a written order or determination related to that property from the zoning administrator, zoning appeals board, or other administrative officer, written notice must be given to the owner of the property within 10 days of receipt of the request. The official receiving the request must give the notice or direct the requesting applicant to give the notice and provide satisfactory evidence of compliance. ³²⁰

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16.1103 Notice for Additional Matters. The governing body of any county, city, or town may, in addition to any specific notice required by law, give notice by direct mail or any other means it deems appropriate, of any planning or zoning matter. ³²¹ Many localities have adopted extensive site posting requirements under this provision.

16.1104 Notice of Imposition of Fees and Levies. Pursuant to section 15.2-107 of the Virginia Code, all levies and fees imposed or increased by a county, city, or town pursuant to the zoning enabling statutes must be adopted by ordinance. The advertising requirements of section 15.2-1427(F) or section 15.2-2204, as appropriate, apply, and the advertisement must also contain (i) the time, date, and place of the public hearing; (ii) the actual dollar amount or percentage change, if any, of the proposed levy, fee, or increase; (iii) a specific reference to the section of the Virginia Code or other legal authority that grants the power to enact the proposed levy, fee, or increase; and (iv) a designation of places where the complete...