The following was submitted to the Northampton County Supervisors by Ken Dufty of Wardtown. Mr. Dufty outlines why the ‘Tourist Cottage’ designation should be removed from the county ordinance.

Please accept the following comments on the March 11, 2022 Zoning Text Amendment proposing to remove the term “tourist cottages” from the definition and land use in our current Northampton County Zoning Ordinance (NCZO). The overwhelming message, to condense the colloquy below, is that my wife and I fully support this attempt to bring our Use Tables and Zoning Ordinance into compliance with the Legislative Intent and Spirit of the duly adopted 2040 Northampton County Virginia Your Comprehensive Plan.

Upon personal opinion, information, and belief, the term “tourist cottages” in the NCZO was and remains a legally indefensible use and arguably would not have survived if the term was challenged and appealed within the statute of limitations when it was added to the use charts over a decade ago. Indeed, the term appears to be inconsistent with and in contrast to Virginia Supreme Court decisions regarding land uses and their consistency (or lack thereof) with the prevailing Comprehensive Plan as well as the Legislative Intent regarding zoning ordinances and land use policy. Legislative intent is especially important because…

A. Virginia is a Dillon Rule state and therefore local governments are strictly regulated by the Commonwealth’s Legislature as to decisions regarding land use and zoning practices.

1) The history of the Dillon Rule and the role of John Forrest Dillon in its Enactment.

John Forrest Dillon was born in Northampton, New York in 1831. As a young man he was recognized as a child prodigy of immeasurable intellect. Indeed, at the young age of 19, Mr. Dillon was awarded a doctorate in medicine. However, more enthralled with pursuing a legal career, the young man read law and became an attorney several years later.

After a stint in private practice, Mr. Dillon rose to become county attorney for Scott County, Iowa, serving in that capacity from 18531856. He later was appointed Justice for the Iowa Supreme Court and after he resigned taught law at several prominent Universities.

During his time representing Scott County and presiding on the Iowa Supreme Court, it is written that Justice Dillon witnessed corruption, bribery and graft that resülted in land use decisions by county and other local government officials that were aimed more at serving private and pecuniary interests than that of the public welfare and good. When in the Supreme Court, he wrote opinions that were pivotal in the prosecution of city and county politicians and others during the Whiskey Trials of the 1870’s.

Hence, in 1872 Justice Dillon published the famous and noted paper entitled “Municipal Corporation”. In that treatise, Dillon posed that municipalities must only have the “powers expressly granted to them by state legislatures” in land use issues as they were prone to deviate from the public welfare and good of their constituents and subject to undue influence (bribes, graft, gifts) from private developers. that could influence their decision making. This quickly became known as the “Dillon Rule” and in a famous case decided in 1907 known as Hunter v. Pittsburg, the United States Supreme Court confirmed the “supreme sovereiqnty of a state over its municipalities” as suggested in the Dillon Rule. Pittsburgh U.S. 161 (1907).

Today, there are 31 states that operate under the Dillon Rule. Hence, under the Dillon Rule as opposed to Municipal Home Rule localities, state governments dictate and control what a municipality; such as a county government, can and more importantly CAN’T do when crafting and indeed implementing land use policy and law.

The Commonwealth of Virginia is one of the 31 states that operate under the Dillon Rule, and, as decided in Hunter, supra, it is “subordinate to state government in enacting its land use policy and regulations”. (ibid)

2. Under the Dillon Rule, the state dictates that every planning commission in the Commonwealth shall prepare and recommend a Comprehensive Plan which must be adopted by the local governing body. The purpose of the plan as dictated by the Virginia Legislature is to “best promote the health, safety, morals, order, convenience, prosperity, and general welfare of the inhabitants, including the elderly and persons with disabilities”. (emphasis added) 15.2-2223. While some may call this plan, once adopted, merely advisory and as one Planning Commissioner recently cålled it a “representative plan”, it nonetheless and irrefutably has the effect of law. This is simply because a zoning ordinance must be consistent with and designed to carry out the goals and visions of that Comprehensive Plan and the Virginia Supreme Court has ruled in many cases that a zoning ordinance or land use decision that is not so consistent with the Comprehensive Plan must not stand, according to personal information, belief and based on the doctrine of stare decisis.

B. “Legislative Intent” sets the parameters for the development of each zoning district and each proposed development must adhere to the spirit and vision of that legislative intent if a municipality establishes that particular land use classification.

1. Northampton County currently has 7 primary zoning districts, with the last two named districts being split into two (2) subsets: single family residential; and multifamily residential. 154.2.128.

Each land use in these individual zoning districts is established by subchapter 154.2.125 which was duly adopted on April 12, 2016 by the Northampton County Virginia Board of Supervisors.

This section of code which was crafted pursuant to the Dillon Rule system of land use governance is entitled “Purpose and Structure” and declares that:

“it is the purpose of this subchapter to establish use, Density, and dimensional regulations which will apply to zoning districts” (ibid)

More specifically, the intent and purpose for each •zoning district has been established and encoded in 152.2-082, which sets the affirmative legislative intent as allowed and penned by the Virginia Legislature. Once legislative intent is embraced for a particular zoning district, all proposed land uses must be consistent with that purpose and intent.

2. The Virginia Supreme Court has ruled that any ambiguity regarding land use is decided by referring to the “legislative intent” and purpose of a zoning district. Fairfax County v. Cohne 821 S.E.2d 698 (2018).

To wit, in that recent decision, re19ing on the doctrine of stare  decisis re: Conyers v. Martial Arts World of Richmond* Inc., 273 Va.  96, 104,639 S.E.2d 174 (2007) [“Under well-established principals, an issue of statutory interpretation is a pure question of law”] the Supreme Court ruled that:

“When construing a statute, our primary objective is to

Ascertain and give effect to legislative intent , as

Expressed by the language used in the statute. When

The language of a statute is unambiguous, we are bound By the plain meaning of that language. And if the

Language of the statute is subject to more than one

Interpretation, we must apply the interpretation that Will carry out the legislative intent behind the statute.” (emphasis added). Page 6, supra.

In closing on this point, recent rulings by the Virginia Supreme Court regarding land use decisions and appeals therefrom appear to be affirming not only ministerial nature of legislative intent and purpose (154.2-082), but also the importance and weight of adherence to the duly adopted Comprehensive Plan.

• “Legislative Intent” simply reflects and codifies the goals and visions of a municipality’s prevailing and most recent Comprehensive Plan. A recent case by the Virginia Supreme Court reinforces former decisions by the high Court that adherence to a Comprehensive Plan is enforceable and has the force of law.

On April 1, 2021, the Virginia Supreme Court passed down a decision in Stafford County v. D.R. Horton v. Record No. 191662 that reviewed an appeal from the Trial Court’s reversal of a decision by the Stafford County Board of Supervisors to deny a permit to developers who wanted to construct and operate several cluster developments.

In that case, the Stafford Board of Supervisor’s decision to deny the permit to the developers was based on failure of the cluster development proponents to adhere to the adopted and updated Comprehensive Plan  and to be subjected to the review that is necessary to determine the consistency with that plan. The developers appealed the decision to the Circuit Court of Stafford County with Justice Charles S. Sharp presiding.  The Trial Court in that case appeared to dismiss the requirement that the proposed developments must be subjected to a review by the Planning Commission to determine if the cluster developments were consistent with the prevailing Stafford County Comprehensive Plan and reversed the Board’s denial. The Board of Stafford County disagreed with the Trial Court decision and appealed to the Supreme Court.

In the ruling by the high Court, there was no ambiguity as to their basis for overturning the Trial Court’s decision: the proposal by the developers and the subsequent decision by the lower court needed to be reviewed to determine if that project(s) were consistent with the Comprehensive Plan, citing the Code (adopted pursuant to the Dillon Rule standard) Section 15.2-2232(A).

• Relevance of Legislative Intent and Consistency with the Comprehensive Plan to the “Tourist Cottage” issue now before the Board in ZTA 2022-03.

The sections and references above are submitted to the Northampton County Board of Supervisors to establish two foundational points that should be made during this proceeding.

1. The term “tourist cottage” is not consistent with the Legislative Intent of the district known as “Agriculture/Rural Business”.
   1. In Code 154.2.082, the purpose and intent of this district is explicitly set to: “1) preserve prime agricultural söils; 2) maintain rural character; 5) to provide for  rural housing compatible with the rural agricultural quality to minimize impact upon agricultural activities and maximize open space which may be used for agriculture and forestry.” (emphasis added).
2. The density proposed by Axios, Inc. when supporting their application for 12 “tourist cottages” on their 40+ acre parcel in the Townsend area is not consistent with the language and intent of the Comprehensive Plan.
   1. Density (number of dwelling units per acre) is clearly established by the Comprehensive Plan and Appendix B of our land use tables. In that Appendix, the number of dwelling units per acre (excluding an accessory dwelling) is set at one (1) dwelling unit per twenty (20) acres.

Without express language that “tourist cottages” [which should never have been allowed in our ZO appendices under A/RB because it is a commercial use in direct contravention of the spirit and intent of that district as established above] could evade density requirements in that rural district, a proposal to put anything more than one (1) DU on a 20 acre parcel or (2) DU’s on a 40 acre parcel, appears to be a violation of the legislative intent and our duly adopted 20202040 Your Northampton County Virginia Comprehensive Plan.

• Any change in density that is not consistent with the adopted use tables in Appendix B must be accomplished by amending the Comprehensive Plan: it cannot be cavalierly changed by amending the zoning ordinance.

The Northampton County YOUR 2040 Comprehensive Plan is very explicit when stating, as result of broad public input, that its primary focus and goal is to preserve our rural character by promoting and preserving our agriculture-based economy and industry, supporting “low density/’ development on agricultural lands. See Page 20. This language is consistent with the 2009 and 2006 Comprehensive Plans and is not a substantive change that would require any deviation of our zoning ordinance which aims to accomplish that goal.

In regard to density calculations in our zoning ordinance, those densities are adopted to carry out the intent and spirit of the Comprehensive Plan, as stated numerous times above.

“Tourist Cottages” are not an agricultural use- they are a commercial use. They are akin to and representative of “stand alone motels”. They db not belong in an agricultural district. Therefore, that use should be removed from our zoning ordinance without reservation.

As for Axios, Inc.’s contention that the zoning ordinance allows 12, or even 6 dwelling units in a relatively small parcel in an A/RB district, there is no language in the Comprehensive Plan or the Appendices of our 2016 Zoning Ordinance that states that “tourist cottages” are not subject to the density requirements established in the use tables.

Therefore that density concentration in an A/RB is not now, nor has it ever been, sanctioned by the Northampton County Board of Supervisors nor was it ever recommended by the Northampton County Planning Commission. [See D.l.a, above].

    ll.      Conclusion

In regard to the application by Axios, Inc. to construct and operate 12 tourist cottages on land zoned as A/RB on their 40+ acre parcel in the Townsend area of Northampton County, the proposal was so egregiously contrary to all of our adopted Comprehensive Plans and coincident 2016 Zoning Ordinance, it never should have been received by the Planning Department.

Indeed, according to the Acting Zoning Administrators Staff Report in the Axios, Inc’s SUP proceeding, the applicant was repeatedly informed that their application was in violation of the Northampton County Comprehensive •Plan(s) because it ignored the density calculations that were established pursuant to those ministerial municipal plans and also was not consistent with preservation of the rural character of Northampton County, among other reasons.

It is not hard to draw a line from the warnings and lectures of John Forrest Dillon [regarding the appearance of undue influence and pressure from private developers to accomplish personal objectives that appear to be contrary to the public welfare and trust] when the application was accepted by a Planning Department employee earlier this year without the approval of the Acting Zoning Administrator.

Now this county reportedly may have to expend county resources..that were and are collected from the taxpayers who indeed worked to establish and craft our Comprehensive Plan…to defend this county against a legal challenge to the Board’s denial of that proposal. It can easily be argued that the Axios, Inc. proposal never should have seen the regulatory light of day, according to personal opinion, information, and belief by this writer.

It is not unusual to hear an oft-repeated refrain that “everything happens for a reason”. Sometimes, or perhaps most times, we do not know what that reason is until we are looking back, usually finding that it makes perfect sense in retrospect.

In this instant matter, we could comfortably conclude that there are three reasons why we are now wrestling with this issue. First, hopefully we all learn that our adopted Comprehensive Plan has the force of law and must not be so cavalierly referred to as a “representative plan” or relegated to a shelf in the Planning Department’s archives. The recent Virginia Supreme Court cases reinforce that lesson plan. Second, we hope that we all learn that land use plans, regulations, and policies are strictly regulated and controlled by the Virginia State Legislature and reinforced by the court when deviating from their mandates. Third, we trust that the “intent and purpose” of our zoning districts and their classifications will have new meaning and import, as also reinforced by the cases cited above. Finally, we hope that Northampton County Planning Department appointees that may not be familiar with the severity of ignoring the Dillon Rule edict become more familiar with the restraints set by the Commonwealth of Virginia’s Legislature regarding the prohibited support of land use decisions or acts which run contrary to established Comprehensive Plan, Zoning Ordinance and Codes, and most of all, Legislative Intent which embrace and enforces all of the above.

The above comments are not intended to be offered or construed ag “legal advice”. They are simply the product of research and reflect the personal opinion of this writer and I appreciate this opportunity to share both of them with you.

5/9/22, 3:11 AM Bd. of Supervisors of Fairfax Cnty- v. Cohn. 821 S.E.2d 693 (2018) | Caselaw Access Project taxes have been paid on the property,” and found that, since 1998, the Garage and Garden House had been “occupied as dwelling units,’t and the Cohns had “paid taxes on the Property as assessed by Fairfax County.” Accordingly, the court concluded that Code S 15.2-2307(D) (ii) protects the Cohns from having to “destroy or otherwise modify the structures.” The circuit court held that the Property, “including all three nonconforming structures, are protected under [ Code S 15.2-2307(D)(ii) J,” and entered an order on July 20, 2017, memorializing its ruling. The circuit court denied the Board’s subsequent motion to reconsider.

The Board appeals. This Court granted one assignment of error:

The trial court erred in holding that S 15.2-2307(D) protected the Cohns’ illegal use of their garden house and garage.

697         *697 11. ANALYSIS

The Board argues that the circuit court erred when it reversed the decision of the BZA. It contends that Code S 15.2-2307(D)(ii) does not protect illegal uses of structures and buildings, and that the circuit court failed to properly interpret the plain language of the statute. We agree.

“Under well-established principles, an issue of statutory interpretation is a pure question of law” this Court reviews de novo. Conyers v. Martial Arts World ofRichmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174 (2007).

When construing a statute, our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. And if the language of the statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Cuccinelli v. Rector & Visitors of the Univ. of Va. 283 Va. 420, 425, 722 S.E.2d 626 (2012) (citations and internal quotation marks omitted).

This Court “resist[s] a construction of a statute that would render part of a statute superfluous. Every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.” Davis v. MICR Dev., LLC , 295 Va. 488, 494, 814 S.E2d 179 (2018) (citation and internal quotation marks omitted). We consider a statute in its entirety “to place its terms in context to ascertain their plain meaning … because it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.” Cuccinelli , 283 Va. at 425, 722 S.E.2d 626 (citation and internal quotation marks omitted). Accordingly, we also generally consider as in pari materia , statutes related to the same subject

https://cite.case.law/se2d/821/693/                                                                                                           5/11

PRESENT: All the Justices

STAFFORD COUNTY, ET AL.

OPINION BY

v. Record No. 191662 JUSTICE STEPHEN R. McCULLOUGH April 1, 2021 D.R. HORTON, INC., ET AL.

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Charles S. Sharp, Judge

In this appeal we consider the interplay of two statutes: Code 15.2-2232, which requires a developer to submit certain plans for review by a locality’s planning commission, and Code 15.2-2286.1, which governs cluster developments. ^[1]The circuit court held that the cluster development plans submitted by two developers were not subject to planning commission review under Code 15.2-2232. We disagree. Therefore, we will reverse the judgment below and remand the case for a review of these plans under Code 15.2-2232 by the Stafford County

Planning Commission.

BACKGROUND

                                  1.              CODE 15.2-2232 AND THE COMPREHENSIVE PLAN.

Stafford County has adopted a comprehensive plan for land use, as required by Code 15.2-2232. The comprehensive plan shows public facilities, such as sewer lines. In the language of the Code, these public facilities are known as “features.” Stafford County’s comprehensive plan also designates an “Urban Services Area” where the County will provide pub

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[1] Cluster development refers to zoning that “favors planned-unit development by allowing a modification in lot size and frontage requirements under the condition that other land in the development be set aside for parks, schools, or other public needs,” including open space preservation. See Black’s Law Dictionary 1757 (9th ed. 2009).