Was that approval by the planning commission legislative or administrative? Sinclair v. New Cingular Wireless PCS

By: Andrew McRoberts, Editor. This was posted Friday, January 27th, 2012

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The Virginia Supreme Court’s opinion in Sinclair v. New Cingular Wireless PCS, Record No. 101831 (January 13, 2012) narrowly read the authority of planning commissions to make certain approvals delegated by zoning ordinance, spurred the dissent of two justices and surprised a lot of local government attorneys.

The case arose out of development proposed on a steep slope in excess of 25% grade in Albemarle County.  The County zoning ordinance allows development on such slopes with a waiver from the planning commission, which is required to consider certain environmental impacts and the report of the County Engineer before making certain findings that the environmental issues have been addressed.  Under the facts of the case, the Albemarle County Planning Commission granted such a waiver, which would have permitted development of a wireless telecommunications tower for New Singular Wireless PCS, LLC.  Kent Sinclair, a law professor at the University of Virginia, was the adjacent property owner and filed a complaint to stop the tower.

Professor Sinclair raised two issues addressed by the Court in its opinion  — (1) whether the “critical slopes” waiver by the planning commission was in fact a variance or zoning modification, requiring consideration of criteria set forth in Virginia Code sections 15.2-2309(2) and 15.2-2286(A)(4), and (2) whether the planning commission was authorized to grant the waiver.

All the justices agreed that the approval authorized in the Albemarle County Zoning Ordinance for steep slope developments meeting certain environmental and engineering criteria was not a “variance” or a “zoning modification” required to meet the requirements of Virginia Code sections 15.2-2309(2) or 15.2-2286(A)(4).  As stated by the Court, “a variance ‘allows a property owner to do what is otherwise not allowed under the ordinance.’  Bell v. City Council, 224 Va. 490, 496, 297 S.E.2d 810, 813-14 (1982).  But where ‘the property may be developed in a way consistent with the ordinance, but only with approval of the [locality] after specified conditions are met,’ a variance is not necessary.  Id. at 496, 297 S.E.2d at 814.”  

Yes, the justices agreed on the first issue, but for different reasons.  The majority opinion (by Justice Mims) appeared to view the waiver as a form of “special exception,” as was considered in the case of Bell v. City Council, or more generally, a “departure” from the zoning ordinance, not necessarily a “variance” under 15,2-2309 or a “zoning modification” under 15.2-2286(A)(4).  As a “special exception” or other “departure” from the zoning ordinance, the waiver was not necessarily a “variance” or a “zoning modification” reasoned the majority.  However, the dissent simply saw the waiver as an administrative approval after consideration of certain criteria under the zoning ordinance.  This led to the split in the opinions on the second issue and the resolution of the case in favor of Professor Sinclair.

On the second issue, the Court held that a planning commission had no authority to grant such a waiver, holding that as a form of “special exception,” the waiver was a legislative decision beyond the “general role of planning commissions, as reflected in their enabling statutes.” There is no statutory grant of authority, the Court stated, “authorizing planning commissions to consider and rule upon departures from a zoning ordinance.” 

The Court disagreed with the defendants, Albemarle County and New Singular Wireless PCS, LLC, which argued that the planning commission could be delegated responsibility under the zoning ordinance to grant this approval as an administrative matter.  The Court reasoned that the General Assembly does not appear to have envisioned a role for planning commissions to do much except comprehensively plan, assist in subdivision and site planning, and advise the governing body in zoning matters.  The Court noted that the only entities authorized to grant “special exceptions” or “modifications” were set forth by statute —  governing bodies, zoning administrators and BZAs. 

Viewing the waiver as a legislative departure from the zoning ordinance, the Court held that the General Assembly “has not … authorized local governing bodies to delegate to planning commissions approval of departures  from zoning ordinances or any other powers to administer or enforce zoning ordinances.”  Lastly, the Court distinguished Ours Properties, Inc. v. Ley, 198 Va. 848, 96 S.E.2d 754 (1957) and similar cases relied upon by the defendants that seemingly allow such delegated decision-making, holding that those cases did not involve zoning, which is “a legislative power … and approval of departures from zoning ordinances is a legislative act.”

The two-justice dissent (Justices McClanahan and Powell) disagreed, and sided with the defendants, reasoning that a local governing body has authority to delegate by ordinance to administrative approvals to bodies and individuals.  The minority cited as controlling Ours Properties and its progeny.  In these cases, the Virginia Supreme Court has allowed a legislative body to delegate final decision-making authority to subordinate bodies, officials and staff if adequate criteria were prescribed for the exercise of that authority, making the decisions administrative and not legislative.

In summary, the split in the opinions was due to the majority’s characterization of the planning commission’s waiver as a legislative “special exception” or “departure” from the zoning ordinance, and thus outside of the planning commission’s authority, rather than an administrative exercise of delegated decision-making permitted under the zoning ordinance within its authority under the Ours Properties line of cases. 

In response to Sinclair, many localities are asking questions. 

Is a local planning commission an entity authorized solely under state statute, or can it be authorized by local ordinance as well, and if so, when?  Is a delegation of authority to a planning commission (per Ours Properties) allowed in a zoning context different from that presented in Sinclair? If all “departures” from the zoning ordinance are legislative, can waivers by other bodies or staff be permitted, even if specific criteria for the waivers are provided? 

If a planning commission is not authorized to administer or enforce the zoning ordinance, how does this impact the reviews and approvals in site plans and plans of development that involve an application of, or, in some cases, “departures” from the zoning ordinance?  (Frequently, in small rural counties with little staff, the planning commission carries out such tasks by necessity, and in larger, urbanizing or urban localities, sophisticated environmental or development conditions may be addressed on a site-specific basis by staff or the commission for the convenience of the developer as much as the local government.)

And perhaps, more generally, localities are asking, “Whose planning commission is it, anyway?”  After Sinclair, it appears that a local planning commission must look to the General Assembly for most of its authority, and for the governing body’s authority to delegate the rest by ordinance.

The reach of the Sinclair opinion will likely be explored in future cases.  In the meantime, proactive amendments to local zoning ordinances should be considered.  With an apparent narrower reading by the Supreme Court of the authority of local governing bodies to craft their zoning ordinances and delegate authority, at least under some circumstances, local governments should take note.

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