Waivers, Steep Slopes, Planning Commissions and the Supremes


By. Neil Williamson, President

A Supreme Court of Virginia decision created most interesting political theater at last night’s Albemarle County Planning Commission meeting; where the Commission voted to deny two applications while in the same motion recommending their approval.

Please let me explain.

Earlier this month the Virginia Supreme Court handed down a ruling dismissing the ability of Planning Commissions to permit waivers.   The Albemarle County case revolved around a critical slopes waiver granted to the defendant to construct a cellular transmission tower.

In a memo to the Albemarle County Planning Commission, Deputy County Attorney Greg Kamptner explained the issues in the Kent Sinclair c. New Singular Wireless case:

Mr. Sinclair alleged and argued that the critical slopes waiver was a “variance” under State law and that the Planning Commission was not enabled to grant variances (under State law, variances may be approved only by boards of zoning appeal.) ….The County’s position was that critical slopes waivers are not variances and, therefore, they did not have to be approved by the Board of Zoning Appeals.

The ruling determined that Planning Commissions lacked the statutory power  to grant waivers.  As a Dillon Rule state, localities have only the statutory powers that are expressly granted by the General Assembly.

MIMSXWriting for the majority Justice William Mims stated:

We therefore hold that the Waiver Provision’s delegation of power to grant waiver applications to the planning commission is legislative in nature and is not authorized by state law. Accordingly, in enacting the Waiver Provision, the county exceeded its authority from the General Assembly in violation of the Dillon Rule and the Waiver Provision is void.

The decision also called into question the planning commission’s authority to approve Tier II wireless facilities.  Absent this authority, the Planning Commission was forced to deny the applications on the grounds that as a body they dd not have the statutory authority to approve them.  This action permits the applicant to appeal the decision to the Board of Supervisors (which does have the statutory authority to approve).  Interestingly, within the same motion, the Planning Commission endorsed each of the application on the merits of the application.

While the Free Enterprise Forum has no position on this specific case, we do believe it raises significant issues regarding policy implications.  This case called the question what is the proper role of a planning commission?

What should the Planning Commissions across the state be doing?

The original intent of Planning Commissions were to advise the Board of Supervisors (or City Council) on issues regarding the orderly development of the community.  This is to include the development of the state mandated comprehensive plan and, in Albemarle’s case, subservient Master Plans.  The review of site plans, agricultural forestal districts etc. have been folded into this legislative intent by considering it the implementation of the comprehensive plan.

In our reading of the original intent, this meant creating an overarching vision for the community and allowing the market to speak to that vision.  The reality that has followed has Planning Commissions meeting too often and discussing too much detail and (in Albemarle) one suggestion to further delegating site plan review to the Architectural Review Board (More on this next week).

In high growth localities, Planning Commissions are very busy.  Fairfax County’s Commission meets two nights a week and planning commissioners are paid $15,000 annually for their service [for means of comparison Albemarle meets, on average, three times a month and is paid $4,100 annually].

Are Planning Commissions doing work that could be handled moreAlbemarle Planning Commission Charlottesville Tomorrow.org efficiently by staff as an administrative decision?

Are those instances where significant issues arise better served by a hearing in front of the elected Board of Supervisors?

In the case of critical slopes, the Free Enterprise Forum believes these slope contribute to the ecological balance in their location.  This contribution is quantifiable.  If the slope, after disturbance, increases the positive ecological contribution, the disturbance should be approved.  Performance standards for such slopes can be established.  If one accepts this basic construct, such approvals can be administrative as they will be based on objective metrics.  If such waivers improve the environmental condition, we believe these should be routinely granted by staff.

It is our opinion that Planning Commissions (and Boards of Architectural Review) have experienced significant mission creep and continue to stray away from their original legislative intent.  Some, but not all, of this straying has been at the specific  direction of the General Assembly, and encouraged by the Virginia Association of Counties (VACO) lobbying group.  This is true in all localities but perhaps is best manifest in Albemarle County.

Late in last night’s meeting a Resolution of Intent was approved to change the zoning code and have the Board of Supervisors consider and act on all waivers as “special exceptions”, a type of approval expressly enabled by State zoning law.

This staff described “short term” solution will be considered at the previously scheduled joint public meeting of the Board and Planning Commission on February 8th.  Longer term solutions would require new State enabling legislation.

While the Free Enterprise Forum is appreciative of the tough spot this judicial ruling places applicants that are in the midst of the approval process, we believe the larger question should be engaged; should more decisions be administratively approved? 

We fear that rather than seeing the Sinclair decision as an opportunity to improve the development process by creating clear and objective standards that are acceptable to the community, localities will seek to further expand their statutory authority through legislative intiatives in Richmond.

Stay tuned.

Respectfully Submitted,

Neil Williamson


20070731williamson Neil Williamson is the President of The Free Enterprise Forum, a privately funded public policy organization covering the City of Charlottesville as well as Albemarle, Greene, Fluvanna, Louisa and  Nelson County.  For more information visit the website www.freeenterpriseforum.org

Photo Credits: Valawyersweekly.com, Charlottesville Tomorrow


One response

  1. H. Watkins Ellerson | Reply

    I am not sure what the legal nature of “waivers” might be, but the “Dillon Rule” issue relates to what powers may delegated by an elected body (the board of supervisors) to an unelected person or entity like a planning commission or staff person. If there is no Code provision authorizing such delegation, then I think it may safely assumed that there is no legal authority.

    You refer to the “mission creep” of planning commissions, and it is well for everyone to remember that they are NOT elected bodies. The Va. Supreme Court in recent years has drawn sharp distinctions emphasizing what powers an elected governing body has, even over the courts!

    It is interesting that Justice Mims says the delegation in Albemarle was “void.” That means it is instantly without any force or effect. That the applicant must suffer delay and proceed with the elected body is unfortunate, but the Court’s decision is not surprising.

    Of course, this assumes that the governing body is empowered under the Code to grant such waivers, for an elected body cannot itself exercise any powers not authorized under the code.

    Otherwise, it may be in the nature of a variance, which must be heard by the Board of Zoning Appeals, which is NOT derivative of a governing body but is a quasi-judicial arm of the local circuit court!

    H. Watkins Ellerson
    PO Box 90
    Hadensville, VA 23067

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