Zoning and Privatization of Virginia’s ABC Stores

By: Andrew McRoberts, Editor. This was posted Thursday, June 24th, 2010

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In his campaign, Virginia Governor Bob McDonnell proposed privatization of the state-owned ABC (liquor) stores as one way to raise revenue without raising taxes. It is important to remember that taking a use that is now public and making it private has repercusions under local land use law and can have concerns for the citizens.

By letter sent June 18, the Virginia Association of Counties (VACo) and the Virginia Municipal League (VML), the bodies representing our Virginia localities at the state government level, told the Governor that ABC stores, if sold for private operation, must be subject to local land use. And they are right.

It is generally accepted that the Commonwealth of Virginia, as sovereign, is not subject to local zoning by its political subdivisions. The Commonwealth does enjoy its freedom from local regulation. However, this freedom does not extend to private uses, such as privately-owned liquor stores.

The Virginia Supreme Court has upheld local land use authority to regulate private liquor sales even when the Commonwealth has issued a state ABC license in City of Norfolk v. Tiny House, 222 Va. 414, 281 S.E.2d 836 (1981) and in County of Chesterfield v. Windy Hill, Ltd. The Supreme Court also upheld local land use authority to regulate private uses, even on publicly-owned land, in Board of Supervisors of Fairfax County v. Washington, D.C. SMSA, L.P.

The importance of local say over the proper location of these stores, and the ability to place reasonable conditions that enable the stores — now no longer under public ownership — to fit harmoniously within the community is critical. Local control over land use works and is essential to meet the citizens’ expectations for their communities.

VML and VACo are right. If the Commonwealth is no longer in charge of the location of these stores, the people’s local elected bodies must be.

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  • It would seem to remove the burden of operating ABC stories from the state budget should only be a good thing. This would reduce a large part of government that has proven to work well in other states. Tax revenw would still be coming to the state on the sale of this product at a greatly reduced cost. Thats good business.

    Posted by: Robert Frydrych | July 17th, 2010 at 2:13 pm
  • I do not think the issue exists in the scenario you mentioned — where the zoning allows the use already. The issue could exist in those situations in which the use is currently not allowed (at all or without a conditional use permit or other zoning approval), but it exists because zoning does not apply to state uses.

    Posted by: Andrew McRoberts | June 28th, 2010 at 1:13 pm
  • Good question! A nonconforming use (the proper legal term) is a use once legal, made illegal through a change in the zoning ordinance. Would this legal principle come into play when a use was illegal under the zoning ordinance (albeit allowed because the Commonwealth is not subject to local zoning), and then the ownership/control goes from Commonwealth to private? The change proposed here is ownership from public to private, not any change in zoning. The legal principle would not come into play if the use was legal under the zoning ordinance at the time of privatization, and no issue would arise.

    Posted by: Andrew McRoberts | June 28th, 2010 at 1:11 pm
  • I do not clearly understand why localities feel that a privately owned liquer store will fit in a community any differently than the liquer stores we have now. They will be in areas zoned for commerical business as now. Other zoning requirements will certainly apply such as signage and parking. It seems like people are panicking over nothing.

    Posted by: Milly | June 25th, 2010 at 10:25 am
  • Would grandfathering (not sure the proper legal terminology for that concept) come into play at all?

    Posted by: Nathan Hughes | June 24th, 2010 at 5:21 pm

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