In the United States, there are 2 types of municipal governments. One is called “Home Rule”…where a municipality is given unlimited power to adopt and enforce zoning and other land use laws, constrained only by the margins of our state and federal constitutions as well as the dictates of criminal law. The others are governed by what is called the “Dillon Rule”, which decrees that municipalities are limited in adopting and enforcing land use (zoning) laws by the state government, and are expressly constrained by state statute and code. This system of state control over local government action was adopted by many states, numbering about 38 to date.
The Dillon treatise was written by John Forrest Dillon, a jurist who observed corruption in local government and watched as developers who were seeking to exploit public resources for their own private interests bribed and otherwise influenced local officials in attempts to enrich themselves using means such as intimidation and other unscrupulous means. The Dillon Rule, which was adopted by the Commonwealth of Virginia in 1896, was secured to stop this illicit manner of land use exploitation once and for all.
To ensure that corruption was not endemic in local land use decisions and policies, a series of Virginia Codes were adopted that established exact and precise methods for adopting, amending, and enforcing zoning laws by town, city, and county governments. In short, every step of establishing local land use laws is strictly regulated by Dillon Rule states to ensure that private interests, like real estate agents and developers, do not, and cannot, accomplish private agendas at the expense of the welfare of the majority. While there are many ancillary constraints regarding zoning and land use planning in these layers of state codes, the operative codes often cited include Virginia Codes 15.2-2280-2284 updated 1950 and later.
To ensure that zoning laws were not written and influenced by private interests at the expense of the public good, Virginia demands (and the Supreme Court has affirmed many times) that a locality’s zoning laws are based on firm and defined studies, are reasonably consistent with the Comprehensive Plan (which reflects the will and desire of the majority of residents and business owners), are not arbitrary and capricious, and adhere to very defined and strict procedures taking into account many, many factors that must serve as foundational support for sustainable and credible zoning ordinances and amendments thereto.. {See attachments #2 and #3}
THE 2015 ZONING AND THE DILLON RULE
Beginning in the fall of 2013, Northampton County officials began a complete rewrite of our 2009 zoning ordinance. Note that the 2009 zoning ordinance was strictly compliant with code and law, and followed Virginia Codes 15.2-2283-84 closely and expertly. It was never challenged in court, because, frankly, there were no grounds to challenge it and no one rose from their seat to present such a challenge. The vision for the new zoning (now called the 2015 zoning) was proclaimed by our County Administrator to be modeled after the Ocean City model……condos, multi-families, highly developed waterfronts, high density, gentrification, and paving over of farmland to commercialize nearly every square foot of public and private land (note here Ocean City’s tax rate per $100/assessed value because of that approach has skyrocketed to $1.32/100 while ours is $0.69/100). When Nunez was asked by a Supervisor what jobs would be available for the minority residents in this county, she allegedly answered that caretaker and landscaper jobs would be available for those minority job-seekers.
The new zoning ordinance included re-zoning of thousands of acres of farmland from ag to residential ( which eliminates 17 farm uses on lands rezoned to residential that were allowed under the 2009 ordinance, including the right for an irrigation pond), allows chicken manure and other waste incineration on farmland, as well a slew of industrial uses on these prime lands, targets mobile home parks and affordable housing options (gentrification), seeks to highly commercialize the Route 13 corridor (the only soils that recharge our aquifer), steers development away from town centers where services are available and where our Comp Plan envisions future growth, calls for multi-family condos and houses along our fragile waterfronts (Ocean City, remember?), eliminates the Town Edge Districts as we know it, eliminates “intent statements” that are necessary to define our individual zones, gives Melissa Kellam (our zoning administrator who does not live in Northampton County) unfettered control over zoning decisions, and even eliminates a citizen’s right to petition the Planning Commission or the Board of Supervisors for a zoning amendment or change (our constitutional right to petition our government for redress), called “substantive due process”.
The adoption of the 2015 zoning ordinance in the face of thousands of residents who protested this change is an administrative nose-thumbing at code, law and indeed the Dillon Rule. But a challenge to that decision in a court of law would have cost residents or a private individual anywhere from 35 grand to $350 grand or more if it were to be taken to the Supreme Court, if an attorney was retained.
So, not having those resources, and having invested nearly full time effort into upholding code and law from March 2014 to December, 2015, I decided to take a shot at defending my interests in this county, interests that served as the basis for all of my investments, both residential and business, in this fine area from the private assault that is the hallmark of the 2015 zoning manifesto. And on December 23, 2015, I filed a Complaint and Request for Injunctive Relief with the Northampton County Circuit Court. I cited 5 causes of action, and you will read these in the final attachment to this document. I had this document vetted by several attorneys AFTER I filed it. Both of their opinions were that the case was unassailable and both independently said that they would not want to have to respond to it in court. Note that the Complaint was 25 pages long with 17 pages of attachments. It cleared the hurdle of being procedurally correct and made its way into Circuit Court shortly before Christmas, 2015. [see the last attachment to his post}
Yet, on January 8, 2016, County Attorney Bruce Jones DID respond to my complaint, demanding that I produce reams of records to support my claims (records that I tried to get from the county on December 13 but were told by the county administrator in writing that she did not “understand” what a “certified copy” was, and after having been informed by Melissa Kellam that the county does not “index” its records, therefore pointing to a 9′ tall pile of boxes and being told that the documents I needed were “in there”).
But Mr. Jones never countered that the 2015 zoning ordinance was lawful or defendable. He instead attacked my statements that I was protecting the interests of my farm (which is surrounded by farmland that could be the future home of race tracks, chicken manure incinerators, schools, Mud Hop events, and industrial poultry houses) here on Wardtown Road when indeed he said that that farm is owned by my wife and actually hinted in a footnote that I was practicing law without a license because I was representing my wife’s interest and you cannot represent someone in a court of law unless you are a licensed attorney. He also testified that I might be perjuring myself in front of the court because I indicated I had an interest in the home which I call my domicile because, he argued, I could not do that unless my name was on the deed. (err…ever hear of the Poll Tax?). Forget about the fact that the home equity loan on this farm is my name. Forget about the fact that my wife’s last will and testament leaves all her real and material possession to me. Forget about the fact that the insurance policy on this $350,000 farm is in my name and not my wife’s. Bruce had to get me out of the way, as, in my opinion, there is no attorney on the planet that could stand in front of Judge and argue that the 2015 zoning ordinance passes the muster of code and law, Simply, it does not, and the Supreme Court has visited similar attempts by county’s to adopt zoning laws that were not compliant with code, and ruled that any zoning ordinance or an amendment thereto must be based on evidence, studies, testimony, and be consistent with the prevailing Comprehensive Plan (that is why our now irrelevant Planning Commission is drooling to adopt a new Comprehensive Plan that accomplishes the goals of the illegal 2015 zoning ordinance).
Shortly thereafter, I received a letter from Mr. Jones saying that the Board of Supervisors had “unanimously” asked him to ask me to dismiss the suit. Instead, I filed a Motion for Voluntary Non Suit, which if granted by the Court (it is a matter of right in Virginia) allows the petitioner to file a new suit once the defects in the old suit have been addressed…which they have.
LAST WEEK, YELLOW-SHIRTED REAL ESTATE AGENTS AND OTHER PRIVATE INTERESTS SHOWED UP AT A PUBLIC HEARING AND DEMANDED THAT THE 2015 ZONING ORDINANCE, WHICH THIS PETITIONER HAS ARGUED IS PATENTLY ILLEGAL, REMAIN IN PLACE. THIS IS THE TYPE OF DEMONSTRATION THAT PROMPTED JOHN FORREST DILLON TO WRITE THE MUNICIPAL TREATISE WHICH THEN PROMPTED THIS STATE TO ADOPT THE DILLON RULE IN 1896. NO AMOUNT OF YELLING, ARM-WAVING, JUMPING UP AND DOWN, OR THREATENING THE BOARD OF SUPERVISORS CAN EVER OVERRIDE LAW, CODE, OR ESTABLISHED PRECEDENT IN THE VIRGINIA SUPREME COURT. WE ARE, AS LEO KELLAM SAID, A NATION OF LAWS AND STRUCTURE, AND IF WE JUST LET THUGGERY TRAMPLE ON THE VERY FABRIC OF OUR DEMOCRACY, WE ARE LOST.
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