B-221556, FEB 10, 1986

B-221556, FEB 10, 1986

GENERAL ACCOUNTING OFFICE - JURISDICTION - STATE LAW APPLICABILITY - NO AUTHORITY TO DETERMINE DIGEST: MEMBER OF SENATE HAS REQUESTED GAO REVIEW OF CONSTITUENT CORRESPONDENCE CONCERNING CONTROVERSY IN WYTHE COUNTY, VIRGINIA, OVER LAND SUBDIVISION ORDINANCE. RESPONSE (1) ADVISES THAT GAO CANNOT RESOLVE THE CONTROVERSY, AND (2) SUMMARIZES VIRGINIA SUBDIVISION CONTROL LAW AND OUTLINES AVAILABLE OPTIONS SHOULD THE LANDOWNER WISH TO SEEK JUDICIAL REVIEW OF COUNTY ACTION. TO SEN. TRIBLE.

THE HONORABLE PAUL TRIBLE:

UNITED STATES SENATE

THIS IS IN RESPONSE TO YOUR LETTER OF DECEMBER 19, 1985, REQUESTING OUR REVIEW OF CORRESPONDENCE FROM MR. BILLY R. BRANSON, WYTHE COUNTY (VIRGINIA) ADMINISTRATOR, AND MR. LARRY K. GOVIN, A LANDOWNER IN WYTHE COUNTY. THE LETTERS CONCERN A CONTROVERSY WHICH HAS APPARENTLY DEVELOPED IN WYTHE COUNTY OVER THE COUNTY'S LAND SUBDIVISION ORDINANCE.

WE HAVE NO SPECIFIC KNOWLEDGE OF THE MATTER BEYOND WHAT IS SET FORTH IN THE CORRESPONDENCE, NOR ARE WE FAMILIAR WITH THE PRECISE TERMS OF THE WYTHE COUNTY ORDINANCE. IN ADDITION, SINCE THE MATTER DOES NOT INVOLVE A FEDERAL PROGRAM OR THE EXPENDITURE OF FEDERAL FUNDS, FURTHER ACTION BY THE GENERAL ACCOUNTING OFFICE WOULD NOT BE APPROPRIATE. HOWEVER, WE CAN OFFER SOME GENERAL COMMENTS WHICH MAY BE HELPFUL.

IT APPEARS THAT MR. GOVIN OWNS A ONE-ACRE TRACT OF LAND IN WYTHE COUNTY IN FEE SIMPLE, AND WISHES TO SUBDIVIDE IT INTO FOUR QUARTER-ACRE "SQUARES" TO BE SOLD AS LOTS ON WHICH TO BUILD HOMES. IT FURTHER APPEARS THAT A REPRESENTATIVE OF THE WYTHE COUNTY BOARD OF SUPERVISORS HAS ADVISED MR. GOVIN THAT HIS PROPOSED ACTION IS PROHIBITED BY COUNTY ORDINANCE. MR. GOVIN CONTENDS THAT THE BOARD OF SUPERVISORS IS ATTEMPTING TO EXERCISE POWERS "WHICH NEITHER THE VIRGINIA STATE LEGISLATURE NOR THE CONGRESS OF THE UNITED STATES POSSESS."

IT IS WELL-ESTABLISHED THAT A STATE HAS INHERENT POWER TO ENACT LEGISLATION TO FURTHER THE PUBLIC HEALTH, SAFETY, AND WELFARE. THIS IS THE STATE'S SO-CALLED "POLICE POWER." IT HAS ALSO BEEN RECOGNIZED THAT A MUNICIPALITY MAY EXERCISE THE "POLICE POWER" TO THE EXTENT DELEGATED BY THE STATE, AND THAT SUCH EXERCISE IS PRESUMPTIVELY CONSTITUTIONAL. SEE, FOR EXAMPLE, MIAMI HERALD PUB. CO. V. CITY OF HALLANDALE, 734 F.2D 666, 673 (11 CIR. 1984), CITING BREARD V. CITY OF ALEXANDRIA, 341 U.S. 622 (1951), AND GOLDBLATT V. TOWN OF HEMPSTEAD, 369 U.S. 590 (1962). STATE DELEGATION OF POLICE POWER IN THE AREAS OF ZONING AND SUBDIVISION CONTROL IS BY NO MEANS UNCOMMON.

THIS APPEARS TO BE THE SITUATION IN VIRGINIA. SECTION 15.1-465 OF THE VIRGINIA CODE REQUIRES EACH COUNTY OR MUNICIPALITY TO ADOPT AN ORDINANCE "TO ASSURE THE ORDERLY SUBDIVISION OF LAND AND ITS DEVELOPMENT." FOR PURPOSES OF SEC. 15.1-465, THE TERM "SUBDIVISION," UNLESS OTHERWISE DEFINED IN A LOCAL ORDINANCE, MEANS "THE DIVISION OF A PARCEL OF LAND INTO THREE OR MORE LOTS OR PARCELS OF LESS THAN FIVE ACRES EACH FOR THE PURPOSE OF TRANSFER OF OWNERSHIP OR BUILDING DEVELOPMENT, OR, IF A NEW STREET IS INVOLVED IN SUCH DIVISION, ANY DIVISION OF A PARCEL OF LAND." VIRGINIA CODE SEC. 15.1-430(1). THUS, AT LEAST IN TERMS OF SIZE, LOCAL REGULATION OF A PROPOSAL SUCH AS MR. GOVIN'S IS CLEARLY WITHIN THE SCOPE OF THE ENABLING STATUTE. THE SUPREME COURT OF VIRGINIA HAS CHARACTERIZED SEC. 15.1-465 AS A DELEGATION TO EACH LOCALITY OF A PORTION OF THE STATE'S POLICE POWER. NATIONAL REALTY CORP. V. CITY OF VIRGINIA BEACH, 209 VA. 172, 163 S.E.2D 154, 156 (1968); BOARD OF SUPERVISORS V. GEORGETOWN LAND CO., 204 VA. 380, 131 S.E.2D 290, 292 (1963).

A LANDOWNER WHO WISHES TO CONTEST A COUNTY'S ACTION UNDER THE ENABLING STATUTE HAS BASICALLY TWO OPTIONS: CHALLENGE THE ENABLING STATUTE ITSELF OR CHALLENGE THE LOCAL ORDINANCE.

THE VIRGINIA SUPREME COURT DOES NOT APPEAR TO HAVE RULED DIRECTLY ON THE VALIDITY OF THE ENABLING LEGISLATION. SEE, E.G., GEORGETOWN LAND CO., SUPRA, 131 S.E.2D AT 292. HOWEVER, WE HAVE FOUND NO SUGGESTION IN OUR BRIEF REVIEW OF THE CASES THAT THE COURT WOULD BE INCLINED TO INVALIDATE THE STATUTE.

WE ARE AWARE OF ONLY ONE CASE IN WHICH A COURT HAS FOUND A STATE SUBDIVISION CONTROL STATUTE TO BE AN UNCONSTITUTIONAL RESTRAINT ON THE LANDOWNER'S RIGHT OF ALIENATION. THAT CASE, KASS V. LEWIN, 104 SO.2D 572 (FLA. 1958), DOES NOT APPEAR TO HAVE BEEN FOLLOWED IN OTHER JURISDICTIONS. IN ANY EVENT, THE FLORIDA STATUTE CONSIDERED IN KASS V. LEWIN DIFFERS MATERIALLY FROM THE VIRGINIA LEGISLATION. THE FLORIDA STATUTE DECLARED ANY CONVEYANCES IN VIOLATION OF THE STATUTE TO BE "VOID AB INITIO." 104 SO.2D AT 575. THE VIRGINIA STATUTE PROHIBITS SUBDIVISION UNLESS THE LANDOWNER HAS RECORDED A PLAT AND HAS COMPLIED WITH THE STATUTE AND LOCAL ORDINANCE. IT FURTHER PROHIBITS SALE OR TRANSFER OF THE LAND UNLESS THE PLAT HAS BEEN DULY APPROVED BY LOCAL AUTHORITY AND RECORDED. VIRGINIA CODE SEC. 15.1-473. HOWEVER, THE STATUTE DOES NOT PURPORT TO NULLIFY THE SALE. SECTION 15.1-473 PROVIDES FOR A FINE OF NOT MORE THAN $500, BUT EXPRESSLY STATES THAT "NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS PREVENTING THE RECORDATION OF THE INSTRUMENT BY WHICH SUCH LAND IS TRANSFERRED OR THE PASSAGE OF TITLE AS BETWEEN THE PARTIES TO THE INSTRUMENT." THE VIRGINIA SUPREME COURT HAS CONFIRMED THAT THIS MEANS WHAT IT SAYS: VIOLATION OF SEC. 15.1-473 "DOES NOT INHIBIT PASSAGE OF TITLE AS BETWEEN THE PARTIES." MATNEY V. CEDAR LAND FARMS, INC., 216 VA. 932, 224 S.E.2D 162, 165 (1976). THUS, IT APPEARS UNLIKELY TO US THAT THE VIRGINIA STATUTE WOULD BE VIEWED AS AN UNCONSTITUTIONAL RESTRAINT ON THE LANDOWNER'S RIGHT TO SELL HIS LAND.

A LANDOWNER WISHING TO CHALLENGE THE COUNTY ORDINANCE WOULD HAVE TO ALLEGE EITHER THAT THE ORDINANCE EXCEEDS THE DELEGATION UNDER THE VIRGINIA ENABLING STATUTE, OR THAT ITS APPLICATION IN A PARTICULAR CASE IS ARBITRARY OR CAPRICIOUS. SECTION 15.1-475 PROVIDES FOR JUDICIAL REVIEW. IF THE LOCAL AUTHORITY DISAPPROVES A PLAT, OR FAILS TO ACT WITHIN 60 DAYS AFTER THE PLAT HAS BEEN SUBMITTED FOR APPROVAL, THE SUBDIVIDER MAY, WITHIN SPECIFIED TIME LIMITS, SEEK REVIEW IN THE CIRCUIT COURT OF THE COUNTY IN WHICH THE LAND IS LOCATED.

A CHALLENGE ALLEGING THAT THE SCOPE OF DELEGATION HAS BEEN EXCEEDED INVOLVES ESSENTIALLY COMPARING THE ORDINANCE WITH THE POWERS CONFERRED BY THE ENABLING STATUTE. THE TEST IS WHETHER THE POWER THE BOARD OF SUPERVISORS IS SEEKING TO EXERCISE HAS BEEN "CONFERRED EXPRESSLY OR BY NECESSARY IMPLICATION." BOARD OF SUPERVISORS V. HORNE, 215 S.E.2D 453, 455 (VA. 1975). A CHALLENGE DIRECTED AT REASONABLENESS WOULD HAVE TO SHOW THAT THE LOCAL ACTION IS NOT REASONABLY RELATED TO A LEGITIMATE COUNTY PURPOSE. THE DISCUSSION IN THE GEORGETOWN LAND CASE CITED EARLIER, 131 S.E.2D AT 293, SUGGESTS THE APPROACH THE VIRGINIA COURTS ARE LIKELY TO FOLLOW. IN ANY EVENT, THE ALLEGATIONS WOULD HAVE TO BE MUCH MORE SPECIFIC THAN THOSE CONTAINED IN MR. GOVIN'S LETTER.

IN CONCLUSION, WE ARE NOT IN A POSITION TO DETERMINE WHETHER WYTHE COUNTY IS RIGHT OR WRONG IN MR. GOVIN'S CASE, NOR WOULD IT BE APPROPRIATE FOR US TO DO SO. HOWEVER, IN THE HOPE OF BEING RESPONSIVE, WE HAVE ATTEMPTED TO OUTLINE THE RELEVANT LEGAL FRAMEWORK AND THE AVAILABLE COURSES OF ACTION. WE HOPE YOU WILL FIND THIS DISCUSSION OF SOME USE. AS YOU REQUESTED, WE ARE RETURNING THE ENCLOSURES TO YOUR DECEMBER 19 LETTER.