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Sprawl in Virginia: Is Dillon the Villain?
By Jesse J. Richardson, Jr
(Reprinted with permission from
Virginia Issues & Answers, Virginia Tech.)
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a rich source
of powers for municipalities. Government officials and citizens
alike should familiarize themselves with their local charter to
determine whether it grants the municipality unique powers.
Statutes (or laws), on the other hand, generally apply to all
municipalities. Some statutes apply more narrowly. Municipalities
mainly look to statutes to "enable" them to carry out their
functions. These statutes are called "enabling statutes." One
Virginia statute in particular purports to grant broad powers
to municipalities. The statute allows municipalities to exercise
"all powers" to "secure and promote the general welfare" and
promote "safety, health, peace, good order, comfort, convenience,
morals, trade, commerce and industry". (Virginia Code Ann. § 15.2-1102).
However, Virginia and other courts use Dillon’s Rule to narrowly
construe even this seemingly generous grant of power. For example,
this apparently broad grant of power generally does not suffice to
enable a locality to enact a zoning ordinance. A state where
Dillon’s Rule applies, therefore, must grant municipalities the
power to zone. In Virginia, a detailed "enabling statute" allows
municipalities to zone and sets out how they may zone. If a
municipality strays from the procedure set out in the statute,
Dillon’s Rule may apply to prohibit the "creative" or "different"
approach. A recent Virginia Supreme Court case illustrates this
latter point. In February of 1997, the Court considered the
validity of a local zoning ordinance prohibiting the construction
of additional buildings or structures to support a nonconforming
use (City of Chesapeake v. Gardner Enterprises, Inc., 253 Va. 243,
482 S.E.2d 812 (1997). A nonconforming use is a utilization of
land in a fashion that was legal when started but, because of a
change in laws, is now no longer lawful. Nonconforming uses are
generally "grandfathered" and allowed to continue. Nonconforming
uses may not be expanded, however, and cannot be renewed if stopped
for a certain length of time.
The plain language of Virginia Code Ann. § 15.1-492 applies to (1)
nonconforming land uses, including buildings and structures
supporting those uses; and (2) nonconforming buildings and
structures. However, the law does not expressly address the
construction of additional facilities to support a nonconforming
use. Under Dillon’s Rule, therefore, the court had to determine
whether the power to prohibit such construction is necessarily
or fairly implied from the powers expressly granted by the
statute. The court found that the statute was sufficient to grant
the power. That the City of Chesapeake and the landowner called
upon the Supreme Court of Virginia to decide this issue (no doubt
at great expense to each) shows, again, the inherent uncertainty
arising from application of Dillon’s Rule. As recently as July 1998,
the Virginia Court of Appeals reaffirmed Dillon’s Rule in Virginia.
In June 1995, the management of Loudoun House, a federally-subsidized
apartment complex, devised a strategy to curb criminal activity and
trespassing. The property manager executed a power of attorney
appointing as her agents all members of the Leesburg Police
Department and basically granting them the power to issue and
serve trespass notices and the like on the Loudoun House property.
The power of attorney designated "each and every sworn officer of
the Leesburg Police Department as my true and lawful
attorneys-in-fact." The court had to determine whether the police
could accept broad power to issue trespass notices. The plain
language of the applicable statute granted police officers the
power to prevent and detect crime, to arrest criminals, and to
protect life and property (Virginia Code Ann. § 15.1-138). Because
the law did not explicitly address police authority to issue
trespass notices, the court employed a Dillon’s Rule analysis to
determine whether this power was "necessarily or fairly implied
in or incident to" the powers expressly granted by the statute.
The court found that the limited authority to issue trespass
notices was a necessary and expedient means of crime prevention
and was "fairly implied in or incident to the powers expressly
granted" to police by the law.
Pros and Cons of Dillon’s Rule
These cases indicate both the specificity required in the law to
grant powers to localities and the uncertainty involved in the
Dillon’s Rule. Many commissions and writers have urged the repeal
or modification of Dillon’s Rule in Virginia. For example, in
1969, the Commission on Constitutional Revision urged the General
Assembly to reverse the rule by allowing
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