(This is Part I of a three-part series about the past, present and future of property rights in Virginia, centering around the Boneta Bill and abuses by localities of their zoning powers.)
In 1962, Virginia was under the heavy influence of Democrat Harry F. Byrd’s political machine known as “the Organization.” It was also on the wrong side of desegregation.
Eight years earlier the U.S. Supreme Court issued its landmark decision in Brown v. Board of Education ending state-mandated segregation in public schools.
Claiming the decision was “destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races,” the “Southern Manifesto” was signed by 97 national Democrat elected officials along with four Republicans. Its signers included Senator Byrd and the entire Virginia congressional delegation.
Byrd’s political machine in Virginia led “Massive Resistance” under which the Virginia General Assembly passed laws to prolong segregation. Some Virginia public schools even closed rather than complying with desegregation.
The U.S. Commission on Civil Right’s 1962 report entitled Civil Rights USA: Public Schools, Southern States 1962 found that only 533 out of 217,000 among Virginia’s black school population attended bi-racial schools.
Then it wasn’t until five years later, 1967, that Virginia’s ban on interracial marriage was overturned in Loving v. Virginia. The U.S. Supreme Court wrote:
In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1965 decision in Naim v. Naim . . . conclude[ing] that the State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy.
1962 was also the year that substantial reforms were made to the Virginia Code provisions delegating land use — aka, zoning — powers to localities. This delegation of powers is codified within Title 15.2.
A review of Title 15.2 shows that the vestiges of discrimination remain in how localities may enforce their land use ordinances.
A Gradation of Authorities
Virginia counties and localities are political subdivisions of the state subject to the Dillon Rule, meaning their powers are derived from the state legislature. Article VII of the Virginia Constitution reads: “The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions . . . .”
A state legislature, of course, may not delegate powers that it does not have, nor may the delegation of power allow localities to violate rights that the legislature may not.
A well-known Jeffersonian maxim is that government closest to the people is better than central planning from a distant capitol. But it is also an American principle that government at all levels must itself be controlled by law.
Jefferson wrote about a “gradation of authorities” that seems to have special meaning after what happened to Martha Boneta and others of less visibility:
[t]he way to have a good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to do . . . . It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself . . . that all will be done for the best . . . . What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body . . . .
A review of the delegation of powers to regulate land use under Title 15.2 shows that it was designed to allow violations of constitutional, legal controls on government, delegating too much discretion to localities without sufficient controls on those powers.
Discretion to discriminate
Two of the fundamental principles of American law to which the Virginia General Assembly must adhere are the equal protection of laws under the Fourteenth Amendment, and due process is found in both the Fifth and Fourteenth Amendments for reasons too long to address here.
The Virginia Code delegates power to localities in ways that allow them to violate both principles — equal protection and due process — because of the discretion that local governments are granted in land use enforcement.
The many stated purposes of Title 15.2 include “promoting the health, safety or general welfare of the public . . . [and] encourag[ing] economic development activities that provide desirable employment and enlarge the tax base.” The “health, safety and welfare” standard is subjective, and is easily abused to justify government trespass on property and other constitutional rights.
Martha Boneta, for example, was charged with violating land use ordinances for selling vegetables and other farm products, and hosting a birthday party on her farm. Those charges were upheld in Fauquier County’s administrative appeals process. She had to close her tiny farm store or face fines of $15,000 per day and potential criminal penalties.
The deck is stacked against those who challenge unconstitutional and abusive enforcement of local land use decisions. A student of civil rights can clearly see how the enforcement provisions are set up to allow localities to discriminate or unevenly enforce land use ordinances. Under this system, counties are allowed to pick land use winners and losers. That, itself, opens the door to collusion and corruption.
Virginia Code Section 15.2-2255 provides that “. . . the governing body shall be responsible for administering and enforcing the provisions of the subdivision regulations through its local planning commission or otherwise.” This is a delegation of power with no standards or controls.
Citizens often complain that the process in certain localities operate like ‘kangaroo courts.’ Section 15.2-2308 states, “The board [of zoning appeals] may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the locality and general laws of the Commonwealth . . . .” Again, we see a lack of standards and controls to prevent discriminatory enforcement.
That impression of picking winners and losers is further enhanced under Section 15.2-2309, “Powers and duties of boards of zoning appeals.” BZAs may accord too much weight to the decisions of zoning administrators who enforce land use ordinances. This Code section reads, “The decision on such appeal shall be based on the board’s judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision . . .”
There is a distinct lack of control on zoning administrators. When disputes arise, citizens lack due process and evidentiary protections even in the administrative appeal process. Section 15.2-2312 provides, “The concurring vote of a majority of the membership of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance from the ordinance . . .”
This gives a presumption of legality to the decisions of zoning administrators, who themselves are not subject to sufficient controls of due process and rules of evidence designed to protect rights. It is a reverse of innocent until proven guilty.
This lack of controls fosters the potential for abuse and discrimination by zoning officials. The bad apples in zoning administration can have their way with too few checks on their power, and too few evidentiary hurdles. They are allowed to be bureaucratic bullies, and the only real check on their power is that that they be fair and decent people. That is the case with many, but not all, zoning administrators, and is never a sufficient check in our American system of government of laws not people.
When I noted the lack of due process protections in the zoning administrative enforcement process, one county supervisor replied rather callously that citizens can get due process through the courts. That ignores the time and expense citizens must spend in an administrative process stacked against them.
But even appeals through the court system are stacked in favor of the localities and against citizens. Under Section 15.2-2314, “Certiorari to review decision of board,” “findings and conclusions of the board of zoning appeals on questions of fact shall be presumed to be correct.” Therefore, this due process of which the county supervisor spoke is an illusion.
Thus, local control over land use enforcement was created in ways that allow localities to violate due process and equal protection of laws. It was established allowing localities to discriminate. This discrimination now takes many forms instead of just racism. The Martha Boneta situation is just one well-known example because she fought the system and became a statewide, indeed national, hero.
At a dinner not long ago, Martha was explaining her travails with Fauquier County and its collaboration with the Piedmont Environmental Council. My visiting sister-in-law, and African-American, responded to Martha, “Now you know what it’s like to be black.”