The Virginia Supreme Court had to determined whether, pursuant to an annexation agreement and a joint comprehensive plan (joint growth area management plan), the County had authority to determine that the school board could construct a high school at an elementary school site without a constriction permit. At issue was whether the proposed development is a feature shown on the plan, and whether approval pursuant to Virginia Code § 15.2-2232 was required for such development. The Code provides that once “a local planning commission recommends a comprehensive plan” and it is “approved and adopted by the governing body,” the plan controls “the general or approximate location, character and extent of each feature shown on the plan.” The Code also provides that where a proposed development is not a feature already shown on the plan, the proposal has to be “submitted to and approved by the commission as being substantially in accord with the adopted comprehensive plan.”
Prior to the joint plan, the Town’s comprehensive plan did not address land outside its corporate limits. When the joint plan was developed, the county agreed it would work with the Town on development issues within the urban growth area. The joint comprehensive plan identified the preferred location for four new schools. To address the need for more schools, the county purchased land in the northwest area of the town, most of which was in the urban growth area covered by the joint plan. The county determined that no commission permit was necessary to build the new school on this parcel, but the town disagreed, claiming that the county was ignoring their right to be involved with, review and approve new development in the urban growth area.
The Supreme Court reiterated that Town’s have no authority, pursuant to State statute, to engage in zoning determinations in the unincorporated areas of the County, since Section 15.2-2232 of the Code pertain to the planning function, not the zoning function. Further, the Code Section refers to a “commission,” which has authority to “prepare and recommend a comprehensive plan for the physical development of the territory within its jurisdiction.” The Court made clear that this is the local planning commission. The Court explains, “While the Town and County jointly engage in planning, zoning determinations within the unincorporated territory of the UGA [Urban Growth Area] remain under the exclusive authority of the County. The Town may participate in the process; however, zoning authority is left with the commission where the territory is located –in this case, in the County.” Commenting that “the planning process is distinct from zoning determinations,” the Court concluded that pursuant to the State Code, “zoning authority remains exclusively with the commission that the ‘territory within its jurisdiction,’” which in this case is the County. The Court noted that nothing in the Code, the Annexation Agreement or the joint comprehensive plan provides any extraterritorial authority for the Town to engage in zoning decisions in the unincorporated area of the County.
With respect to the school and the question of whether it is a feature already shown on the adopted plan, the Court found that the proposed location is approximately two miles from the location of the feature on the map, and that therefore it “is not in accordance with the ‘general or approximate location’ requirement for the plan…” Therefore, the trial court erred in determining it was a feature shown on the map and that no commission permit was required.
Loudon County v Town of Purcellville, 2008 WL 4181731 (Va. 9/12/2008).
The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1071424.pdf
Leave a Reply