[Posted January 30, 2012] If you’ve reviewed my analysis of the most recent batch of Supreme Court decisions, and have compared my listing of analyses with the court’s list of published opinions, you may have noticed one omission: the land-use case of Sinclair v. New Cingular Wireless. That doesn’t reflect a bias against land-use law. Instead, it indicates three things: (1) This is a particularly arcane area of the law, and I want to be sure of my analysis; (2) there is a pointed dissent, and I want to be sure I do the debate justice; and (3) I think the court got it wrong, quite wrong.

The issue here is whether a local government (here, Albemarle County) can delegate to its planning commission the authority to review site-development plans and grant waivers from development restrictions involving any construction on steep slopes. (This is, as you will appreciate, a problem we seldom see down here in the flatlands of Tidewater; but up in the Piedmont, it’s more of a concern.) New Cingular sought such a waiver to plant a cell tower on part of a parcel of land that constitutes a steep slope, and a neighbor objected. The commission granted the waiver application over that objection.

The neighbor sued in circuit court, asserting (primarily for the purposes of this discussion) that the delegation of power to the planning commission by the County board violated the Dillon Rule, since it delegated the exercise of a legislative power. He contended that only the BZA can grant variances, and the circumstances to support those are painfully difficult to establish. He added a contention that the process deprived him, as an aggrieved party whose property rights would somehow be negatively affected, of the right to seek judicial review of the commission’s action. The trial court disagreed with the neighbor and ruled in favor of New Cingular.

The Supreme Court reverses on the Dillon Rule issue and remands for further proceedings. There are several key issues here, but I’ll focus immediately on what I think the court got wrong. The majority analyzes this as a zoning issue, when it’s actually a site-development issue. Zoning deals with regulating what uses (e.g., agricultural, retail, office, apartment, light industrial, sale of gasoline, and even cellular towers) are permitted on properties. But the site-development process, which is implicated here, deals with approving plats that subdivide property, and with individual site plans, which govern how and where physical improvements (structures, drainage systems, utilities, septic systems, driveways, parking, etc.) are made on a particular parcel.

Zoning changes, conditional use permit approvals and zoning variances are legislative in nature. Many Virginia localities have adopted zoning ordinance provisions which require legislative approval of a conditional use permit or a special use permit for a cell tower in most of their zoning districts. In this case, the cell tower was a permitted land use within the zoning district applicable to the property. Were that not the case, the question or issue of granting a “waiver” to allow the tower to be placed on a deep slope would never have been reached.

Reviewing subdivision plats and site plans that have been prepared by professional surveyors and engineers to ensure that they are consistent with the provisions of a locality’s development ordinances (for example, a subdivision ordinance, site plan ordinance, or stormwater management ordinance) is indeed ministerial and not legislative, contrary to what the majority holds here. There should be nothing at all wrong with delegating to a county or city administrator, planning director, engineer, or an appointed planning commission, the authority to review and approve subdivision plats and site-development plans.

Delegating the power to rezone, in contrast, would be impermissible, since that act is indeed legislative in nature – a point on which the majority and the dissent agree. But the dissent (Justice McClanahan, joined by Justice Powell) points out, quite correctly, that this waiver provision isn’t a process for getting a zoning variance or zoning modification. In fact the “waiver” to permit construction of a structure on a deep slope is analogous to the granting of an approval to construct a structure in the Resource Protection Area as defined by the Chesapeake Bay Preservation Area Ordinance. That process is delegated in most localities, affected by the Chesapeake Bay Act, to an appointed board or commission.

Why does this matter? Because if the majority is right, all sorts of garden-variety variations and waivers to subdivision and site plan issues may now have to go before elected county boards and city councils instead of being reviewed and decided by the county or city administrator, manager, planning director or planning commission, where these decisions belong. I invite you to imagine the reaction to this ruling in county and municipal law offices, as those lawyers now advise their bosses that every proposed waiver or variation from the development restrictions and criteria for improvements such as stormwater management facilities, street lights, parking spaces – even tree plantings, for cryin’ out loud – must now go before the elected officials, contrary to what has been the established practice in Virginia for generations.

I think the trial judge got this one right, and the judgment should have been affirmed. I’m not sure if this decision renders Virginia an outlier in American jurisprudence, but it’s a jarring shock for the cadre of land-use lawyers who are accustomed to a very different division of authority at the local level.