A study released this week gives strong support to what Northern Virginia officials have long argued: The Virginia Supreme Court has gone beyond its rightful powers in frustrating efforts of local governments to control growth.
That is the verdict two law professors reached in a study of the court's zoning decisions over the last 25 years. The study was commissioned by the Virginia Municipal League and the Virginia Association of Counties, two groups that have complained local governments need more power to regulate developers.
In startlingly direct and sometimes harsh language, the study says the commonwealth's highest court has stripped local governments of legitimate zoning powers and virtually set a single standard for zoning: Will the landowner make the greatest profit possible?
"The Supreme Court's rationale . . . apparently is based on the idea that maximizing the opportunities of land developers for private profit serves the broad public interest," the study says.
It accuses the court of "freely substituting its own land-use policies for legislatively chosen ones" -- in effect, acting like a rump legislature.
The study was prepared by Lillian R. BeVier and Denis J. Brion, law professors at two Virginia institutions steeped in conservative tradition -- the University of Virginia and Washington and Lee University. The study was presented Tuesday to a conference of local government officials in Charlottesville, sponsored by the Institute of Government at the University of Virginia.
Not unexpectedly, Northern Virginia officials, who often have been frustrated by the state supreme court in their attempts to cope with suburban growth, greeted the study enthusiastically.
"I think it establishes pretty clearly that the Virginia Supreme Court has effectively repealed most of the legislative guidelines governing zoning," said Fairfax Supervisor James M. Scott (D-Providence), who first proposed the study when he was president of the Virginia Association of Counties.
Between 1955 and 1978, Scott said, the Virginia Supreme Court was, in land-use cases, "more of an activist court than the Warren Court ever thought of being. The court was legislating on its own, no question about it."
Scott added that the court's behavior reveals "a deep distrust of the political processes and of local government" and called the court's reasoning "the antithesis of Jeffersonian democracy."
Fairfax and other fast-growing areas in the state have long claimed that Virginia courts have favored landowners, noting that the courts have pointedly said landowners have the right to the "highest and best use" of their property. This attitude, local government officials have argued, has prevented them from imposing controls on growth and has exacted a price in the loss of open space, overcrowded public facilities and higher taxes.
Those views are not shared by the zoning attorneys who so often have taken Fairfax County and other jurisdictions to court and won. John T. (Til) Hazel Jr., who as a zoning attorney and developer has helped to reshape Fairfax County, said the study was "absolute nonsense. . . . It's sour grapes. . . . It's disgraceful. . . . They have gone on half-cocked with their biases.
"If Fairfax had prevailed in the Carper case a 1959 decision which opened up the western part of the county to intense residential development , two-thirds of the county would be set aside as horse country."
Hazel said Fairfax County's attempts to control growth only served to make it more difficult for many middle-class families to find affordable housing in the area. To prove the study's thesis, Hazel says, "You have to prove that Fairfax suffered because of rapid growth. Despite all the claims about the fiscal costs of growth, the county has an AAA bond rating and has had one for five years."
The two groups that sponsored the study, however, are expected to use the study as evidence to persuade the General Assembly to reassert the zoning powers of local government and restrain the Virginia Supreme Court.
One legislator they will have to persuade is Del. Richard C. Cranwell (D-Roanoke), chairman of a statewide committee, including legislators and developer representatives, that is studying the impact of court decisions on zoning. And Cranwell does not appear to be an immediate convert.
"Based on a reading of the cases, I'm of the opinion that the Virginia Supreme Court has not exceeded its bounds. But we have had some eroding of the presumption of legislative validity. . . . We want to make a clear statement of the law and provide some comfort to localities and guidance to the Supreme Court."
Nonetheless, Cranwell indicated it may be time for the legislature to change the "Dillon Rule," so often cited by the Supreme Court in its rulings. Under the rule, named after a 19th century Iowa judge, Virginia localities have only those powers that the state legislature specifically grants them. And since the legislature has been wary of many requests from Northern Virginia governments, the rule has been particularly inhibiting to efforts to control development.
"Home rule," said Cranwell, "might be a better solution to land-use problems than to have the court pontificating from on high."
The study, which also looked at decisions by other Virginia courts, contends that the judicial system sometimes became so involved in growth issues that the courts were actually dictating zoning categories.
In 1973, the study notes, a Fairfax County Circuit Court judge directed the county to rezone a property to three houses per acre instead of one. The Virginia Supreme Court rejected the ruling, testily saying that the decision "violates the doctrine of separation of powers."
Despite its criticism, the study notes what it says appears to be a counter-trend in court rulings, a move toward reestablishing the zoning powers of local governments.