Present: Hassell, C.J., Keenan,1 Koontz, Lemons, Goodwyn, and 

Millette, JJ., and Lacy, S.J. 

ANTON E.B. SCHEFER 

 OPINION BY 

v. Record No. 090803 JUSTICE LAWRENCE L. KOONTZ, JR. 

 April 15, 2010 

CITY COUNCIL OF THE CITY OF 

FALLS CHURCH 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

William T. Newman, Jr., Judge 

 In this appeal, we consider whether a zoning ordinance, 

which establishes different building height regulations on 

one-family dwellings in the same zoning district, violates the 

provisions of Code § 15.2-2282. We also consider an equal 

protection challenge to that zoning ordinance. 

BACKGROUND 

 The material facts are not in dispute. Anton E.B. 

Schefer2 owns 12 lots in the City of Falls Church (the “City”), 

all of which are zoned R1-B, a medium-density residential 

district. Falls Church City Code § 38-17 (2006).3 Under the 

 1

 Justice Keenan participated in the hearing and decision 

of this case prior to her retirement from the Court on March 

10, 2010. 

2

 Schefer died on February 18, 2010 during the pendency of 

this appeal. Counsel for Schefer filed a motion for this 

Court to retain jurisdiction pursuant to Code § 8.01-20. In 

its reply, the City did not oppose the motion. We granted the 

motion by order dated March 15, 2010. 

3

 All references to the Falls Church City Code contained 

in this opinion relate to the 2006 version since the parties 

and the circuit court relied exclusively on this version 

below. Since 2006, the City’s code has been renumbered and 
City’s zoning ordinance, the minimum lot area requirement for 

one-family dwellings in the R1-B zoning district is 7,500 

square feet. Falls Church City Code § 38-17(e)(1). Lots, 

such as those owned by Schefer, that are comprised of a lot 

area of less than 7,500 square feet, but were lawfully created 

prior to this requirement, are designated as “Substandard 

lots” under the City’s zoning ordinance. Falls Church City 

Code § 38-28(b)(2). 

 In 2006, the City adopted Zoning Ordinance 1799, amending 

the permissible height and yard set-back regulations for a 

one-family dwelling on substandard lots throughout the City’s 

residential districts. Falls Church City Code § 38-28(b)(2) 

(as amended Dec. 11, 2006). Prior to the enactment of this 

ordinance, the maximum building height for “residential use” 

on all lots in the R1-B zoning district was “the lesser of 

thirty-five (35) feet or two and one-half (21⁄2) stories.” 

Falls Church City Code § 38-17(e)(4). With the enactment of 

Ordinance 1799, the City created a formula for calculating the 

allowable building height of one-family dwellings on 

substandard lots within the City’s “R” (residential) zoning 

districts. Falls Church City Code § 38-28(b)(2). That 

formula provides that “substandard lot building height shall 

 

portions have been amended. The amendments are not pertinent 

to the issues presented in this appeal. 

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be determined as a ratio of actual lot area to the required 

lot area, multiplied by the maximum allowable height in the 

underlying zoning district. However, the substandard lot 

building height shall not be required to be less than twenty 

five (25) feet.” Id. Thus, the maximum height of one-family 

dwellings on substandard lots in the R1-B zoning district will 

range between 25 to 35 feet, depending on the size of each 

lot. The maximum height of one-family dwellings on “standard” 

lots in the R1-B zoning district remains 35 feet. 

 Schefer hired a licensed surveyor to evaluate the 

potential impact of Ordinance 1799 on one of his substandard 

lots. The surveyor first determined that the lot’s actual 

area of 6,007 square feet when compared to the required lot 

area of 7,500 square feet presented a ratio of 0.8010. 

Multiplying 0.8010 by the maximum allowable height of 35 feet, 

the surveyor concluded that 28.04 feet was the maximum 

building height allowed for this lot. 

 Thereafter, Schefer filed a declaratory judgment action 

against the City,4 claiming that Ordinance 1799 violates the 

provisions of Code § 15.2-2282 and deprives him of equal 

protection under the law. The parties subsequently filed a 

joint statement of facts and cross-motions for summary 

 4

 Specifically, the “City Council of the City of Falls 

Church, Virginia” was named as the defendant. 

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judgment. After conducting a hearing on the motions, the 

circuit court granted the City’s motion for summary judgment, 

denied Schefer’s motion for partial summary judgment, and 

dismissed Schefer’s case with prejudice. 

 We awarded Schefer this appeal, which presents only 

questions of law to review de novo. Board of Zoning Appeals 

v. Board of Supervisors, 276 Va. 550, 552, 666 S.E.2d 315, 316 

(2008). 

DISCUSSION 

 Schefer asserts that Ordinance 1799 should be declared 

void because it is in plain violation of Code § 15.2-2282. 

The thrust of his assertion is that the express language of 

Code § 15.2-2282 prevents the City from imposing different 

building height regulations on one-family dwellings in the R1-

B zoning district based solely on lot size. Thus, the focus 

of our analysis of this issue is whether Ordinance 1799 

violates the requirement of Code § 15.2-2282 that “[a]ll 

zoning regulations shall be uniform for each class or kind of 

buildings and uses throughout each district.” In this regard, 

Schefer maintains that “uniform” means “identical.” 

 Schefer also asserts an equal protection challenge to 

Ordinance 1799. Schefer contends that Ordinance 1799 is 

facially discriminatory and, thus, unconstitutional on its 

face. Additionally, Schefer maintains that the City failed to 

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establish that Ordinance 1799 is “substantially related to the 

public health, safety, or welfare.” See Board of Supervisors 

v. Rowe, 216 Va. 128, 140, 216 S.E.2d 199, 210 (1975). 

 We begin our review of Schefer’s challenges to Ordinance 

1799 with the well-established Dillon Rule of strict 

construction. The Dillon Rule “provides that ‘municipal 

corporations have only those powers that are expressly 

granted, those necessarily or fairly implied from expressly 

granted powers, and those that are essential and 

indispensable.’ ” Marble Techs., Inc. v. City of Hampton, 279 

Va. 409, 417, 690 S.E.2d 84, 88 (2010) (quoting Board of 

Zoning Appeals, 276 Va. at 553-54, 666 S.E.2d at 317); accord

Board of Supervisors v. Countryside Investment Co., 258 Va. 

497, 502-05, 522 S.E.2d 610, 612-14 (1999); City of Chesapeake 

v. Gardner Enters., 253 Va. 243, 246, 482 S.E.2d 812, 814 

(1997). Thus, “[w]hen a local ordinance exceeds the scope of 

this authority, the ordinance is invalid.” City of 

Chesapeake, 253 Va. at 246, 482 S.E.2d at 814; see also Board 

of Supervisors v. Reed’s Landing Corp., 250 Va. 397, 400, 463 

S.E.2d 668, 670 (1995) (“If there is a reasonable doubt 

whether legislative power exists, the doubt must be resolved 

against the local governing body.”). There is no dispute that 

pursuant to Code § 15.2-2280 the General Assembly has 

authorized any locality by ordinance to zone the territory in 

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its jurisdiction. Code § 15.2-2282 addresses the scope of 

this general authority. 

 Code § 15.2-2282 provides that “[a]ll zoning regulations 

shall be uniform for each class or kind of buildings and uses 

throughout each district, but the regulations in one district 

may differ from those in other districts.” This requirement, 

commonly referred to as the “uniformity requirement,” was 

modeled after § 2 of the Standard State Zoning Enabling Act 

(“SSZEA”), published by the United States Department of 

Commerce in 1926, which states in part that all zoning 

“regulations shall be uniform for each class or kind of 

buildings throughout each district, but the regulations in one 

district may differ from those in other districts.” SSZEA §2 

at 6 (emphasis added). This or a similar requirement appears 

in the zoning enabling acts of nearly every state. 1 Patricia 

E. Salkin, American Law of Zoning § 6:25 (5th ed. 2009). 

Virginia clearly adopted the SSZEA language verbatim, with the 

exception of adding “uses” to its requirement. 

 The crux of the uniformity requirement is to assure that 

zoning regulations are nondiscriminatory. See, e.g., Anderson 

House, LLC v. Mayor & City Council of Rockville, 939 A.2d 116, 

131 (Md. 2008) (“Many jurisdictions agree that the kind of 

discrimination violative of the uniformity requirement occurs 

when a zoning ordinance singles out a property or properties 

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for different treatment than others similarly situated.”); see 

also Harris v. Zoning Comm’n, 788 A.2d 1239, 1258 (Conn. 2002) 

(“The thrust of the statutory requirement of uniformity is 

equal treatment.”); Rumson Estates, Inc. v. Mayor & Council of 

the Borough of Fair Haven, 828 A.2d 317, 329-30 (N.J. 2003) 

(“Uniformity is not absolute and rational regulations based on 

different conditions within a zone are permissible so long as 

similarly situated property is treated the same.”). As the 

drafters of the SSZEA noted, “[The uniformity requirement] is 

important, not so much for legal reasons as because it gives 

notice to property owners that there shall be no improper 

discriminations, but that all in the same class shall be 

treated alike.” SSZEA §2, at 6 n.19; see also 1 Salkin, 

supra, at § 6:25. 

 Likewise, we declared in Bell v. City Council of 

Charlottesville, 224 Va. 490, 496-97, 297 S.E.2d 810, 814 

(1982) that the uniformity requirement “is in reality a 

statutory reaffirmation of the equal protection of the law 

guaranteed to all persons by the Fourteenth Amendment to the 

Constitution.” Generally, under an equal protection analysis, 

“[w]hen a land use permitted to one landowner is restricted to 

another similarly situated, the restriction is discriminatory, 

and, if not substantially related to the public health, 

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safety, or welfare, constitutes a denial of equal protection 

of the laws.” Rowe, 216 Va. at 140, 216 S.E.2d at 210. 

 With these principles in mind, we resolve the issue 

whether Ordinance 1799 violates Code § 15.2-2282 by examining 

the plain language of the statute. See Logan v. City Council, 

275 Va. 483, 492, 659 S.E.2d 296, 301 (2008) (“We determine 

the General Assembly’s intent from the words employed in the 

statutes.”); City of Richmond v. Confrere Club of Richmond, 

239 Va. 77, 80, 387 S.E.2d 471, 473 (1990) (“Legislative 

intent is determined from the plain meaning of the words 

used.”). Code § 15.2-2282 requires uniform zoning regulations 

“for each class or kind of buildings and uses throughout each 

district.” (emphasis added). By its plain terms, the 

uniformity requirement applies only to those “buildings and 

uses” of the same “class or kind.” 

 Schefer maintains that one-family dwellings are 

“buildings and uses” of the same “class or kind” and, 

therefore, the City must impose identical building height 

regulations on standard and substandard lots in the R1-B 

zoning district. We conclude, however, that this case is 

equally about two “kind[s]” of “uses” as contemplated by Code 

§ 15.2-2282, that is residential use on standard lots and 

residential use on substandard lots. There is no dispute that 

the City uniformly applies its building height regulations for 

8
one-family dwellings on standard lots and uniformly applies 

its building height regulations for one-family dwellings on 

substandard lots in the R1-B zoning district. In sum, under 

Ordinance 1799 the building height regulations for one-family 

dwellings on all substandard lots are applied identically, and 

those regulations for one-family dwellings on standard lots 

are applied identically. We thus hold that Ordinance 1799 

does not violate the uniformity requirement of Code § 15.2-

2282. 

 We now turn to Schefer’s equal protection challenge. We 

review this challenge in accordance with the following wellsettled principles: 

The legislative branch of a local government in the 

exercise of its police power has wide discretion in 

the enactment and amendment of zoning ordinances. 

Its action is presumed to be valid so long as it is 

not unreasonable and arbitrary. The burden of proof 

is on him who assails it to prove that it is clearly 

unreasonable, arbitrary or capricious, and that it 

bears no reasonable or substantial relation to the 

public health, safety, morals, or general welfare. 

The [C]ourt will not substitute its judgment for 

that of a legislative body, and if the 

reasonableness of a zoning ordinance is fairly 

debatable it must be sustained. 

Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S.E.2d 

390, 395 (1959) (emphasis added). Moreover, “[w]hen 

presumptive reasonableness ‘is challenged by probative 

evidence of unreasonableness, the challenge must be met by 

evidence of reasonableness.’ ” Board of Supervisors v. 

9
McDonald’s Corp., 261 Va. 583, 590, 544 S.E.2d 334, 339 (2001) 

(quoting Board of Supervisors v. Jackson, 221 Va. 328, 333, 

269 S.E.2d 381, 385 (1980)) (emphasis added); see also Kisley 

v. City of Falls Church, 212 Va. 693, 697, 187 S.E.2d 168, 171 

(1972) (“the presumption governs unless it is overcome by 

unreasonableness apparent on the face of the ordinance”). 

 Schefer contends that the City has failed to meet its 

burden by failing to offer evidence of the reasonableness of 

Ordinance 1799. Yet, as the party challenging a presumptively 

reasonable zoning ordinance, Schefer has the initial burden of 

offering evidence of its unreasonableness. Schefer, however, 

has consistently maintained that Ordinance 1799 is facially 

discriminatory and that its “reasonableness or lack thereof is 

irrelevant.” Because Ordinance 1799 is not inherently suspect 

and does not infringe upon the exercise of a fundamental 

right, we reject Schefer’s assertion that it is facially 

discriminatory. See Estes Funeral Home v. Adkins, 266 Va. 

297, 304, 586 S.E.2d 162, 165 (2003); Cupp v. Board of 

Supervisors, 227 Va. 580, 596, 318 S.E.2d 407, 415 (1984). 

Accordingly, we conclude that Schefer did not present 

sufficient evidence to show that Ordinance 1799 is 

unreasonable and, thus, failed to rebut the presumption of its 

validity. 

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CONCLUSION 

 For these reasons, we will affirm the circuit court’s 

judgment awarding summary judgment in favor of the City. 

Affirmed.

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