Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Koontz, JJ., and Whiting, Senior Justice 

CITY OF CHESAPEAKE 

v. Record No. 961142 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 February 28, 1997 

GARDNER ENTERPRISES, INC., ETC. 

 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Robert S. Wahab, Jr., Judge Designate 

 In this appeal, we consider the validity of a local zoning 

ordinance prohibiting the construction of additional buildings or 

structures to support a nonconforming use.*

 The facts in this appeal are not in dispute. Gardner 

Enterprises, Inc., t/a Greenlawn Memorial Gardens (Greenlawn), 

owns a 47-acre parcel of land in the City of Chesapeake. The 

property has been in continuous use as a cemetery since 1953. In 

1969, the City adopted a zoning ordinance designating cemeteries 

as a conditional use in the zoning district where Greenlawn is 

located. This zoning restriction remains in effect under the 

present zoning ordinance. 

 Greenlawn has operated the cemetery as a nonconforming use 

since 1969. In 1973, 1975, 1988, and 1990, Greenlawn received 

building permits for the construction of mausoleums on the 

property without obtaining a conditional use permit. During this 

 

 *A "nonconforming use" is "a lawful use existing on the 

effective date of the zoning restriction and continuing since 

that time in non-conformance to the ordinance." Knowlton v. 

Browning-Ferris Indus. of Va., 220 Va. 571, 572 n.1, 260 S.E.2d 

232, 234 n.1 (1979). 
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time period, the zoning ordinance did not prohibit the 

construction of additional structures to support a nonconforming 

use. 

 In 1993, the City adopted a comprehensive amendment to its 

zoning ordinance. Section 15-104.B of the amended ordinance 

provides: 

 A building containing a lawful nonconforming use shall 

not be enlarged, extended, reconstructed or moved, 

except in changing the use of the building or structure 

to one which is permitted or for which a conditional 

use permit has been granted; in addition, no additional 

buildings or structures may be constructed to carry out 

or support the nonconforming use on the site. [Emphasis 

added.] 

 In 1995, Greenlawn requested a building permit for the 

construction of an additional mausoleum. The zoning 

administrator denied the application, finding that the ordinance 

expressly prohibited the construction of new buildings or 

structures to support a nonconforming use, and that Greenlawn was 

required to obtain a conditional use permit before any additional 

building permits could be issued. The Board of Zoning Appeals 

upheld the zoning administrator's decision. 

 Greenlawn filed a motion for declaratory judgment in the 

trial court, requesting the court to rule that § 15-104.B 

directly conflicts with Code § 15.1-492 and therefore is void. 

The trial court declared § 15-104.B invalid, holding that this 

section prohibits additional structures on nonconforming uses of 

land, while Code § 15.1-492 only authorizes limitations on 

nonconforming uses of buildings or structures. 
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 On appeal, the City contends that the trial court failed to 

construe Code § 15.1-492 in a rational manner consistent with 

legislative intent. The City argues that the trial court made an 

invalid distinction between uses of land and uses of buildings or 

structures. The City asserts that § 15-104.B of the zoning 

ordinance does not exceed the authority granted by Code § 15.1-

492, because the statute implicitly authorizes local governments 

to adopt zoning regulations prohibiting the construction of new 

structures supporting nonconforming land uses. 

 In response, Greenlawn alleges that Code § 15.1-492 only 

grants local governing bodies the authority to prohibit the 

structural alteration of a nonconforming building and the 

structural alteration of a building housing a nonconforming use. 

 Greenlawn contends that the City lacks statutory authority to 

prohibit the construction of additional buildings to support a 

nonconforming land use as long as the character of the land use 

does not change. We disagree with Greenlawn. 

 The Dillon Rule of strict construction controls our 

determination of the powers of local governing bodies. This 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. Ticonderoga Farms v. County of Loudoun, 242 Va. 

170, 173-74, 409 S.E.2d 446, 448 (1991); City of Richmond v. 

Confrere Club of Richmond, 239 Va. 77, 79, 387 S.E.2d 471, 473 
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(1990). When a local ordinance exceeds the scope of this 

authority, the ordinance is invalid. See City of Richmond, 239 

Va. at 80, 387 S.E.2d at 473; Tabler v. Board of Supervisors, 221 

Va. 200, 204, 269 S.E.2d 358, 361 (1980). Thus, we must 

determine whether the authority to prohibit the construction of 

additional buildings to support a nonconforming use is expressly 

granted or necessarily implied from the powers granted to local 

governing bodies in Code § 15.1-492. 

 Code § 15.1-492 provides that: 

 Nothing in this article shall be construed to authorize 

the impairment of any vested right, except that a 

zoning ordinance may provide that land, buildings, and 

structures and the uses thereof which do not conform to 

the zoning prescribed for the district in which they 

are situated may be continued only so long as the then 

existing or a more restricted use continues and such 

use is not discontinued for more than two years, and so 

long as the buildings or structures are maintained in 

their then structural condition; and that the uses of 

such buildings or structures shall conform to such 

regulations whenever they are enlarged, extended, 

reconstructed or structurally altered and may further 

provide that no "nonconforming" building or structure 

may be moved on the same lot or to any other lot which 

is not properly zoned to permit such "nonconforming" 

use. [Emphasis added.] 

 The plain language of Code § 15.1-492 applies to (1) 

nonconforming land uses, including buildings and structures 

supporting those uses; and (2) nonconforming buildings and 

structures. This section allows local governments to limit a 

nonconforming land use, or a nonconforming building or structure, 

to its existing use or to a more restricted use. Included in 

this authority is the power to require that "the buildings or 
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structures are maintained in their then structural condition." 

When a property owner wishes to make certain changes to, or to 

move, a building or structure which supports a nonconforming use 

or is itself nonconforming, the proposed changes are subject to 

the regulations of the zoning ordinance. 

 However, Code § 15.1-492 does not expressly address the 

construction of additional facilities to support a nonconforming 

use. Under Dillon's Rule, therefore, we must determine whether 

the power to prohibit such construction is necessarily or fairly 

implied from the powers expressly granted by the statute. See

Ticonderoga Farms, 242 Va. at 173-74, 409 S.E.2d at 448; City of 

Richmond, 239 Va. at 79, 387 S.E.2d at 473. 

 We look to the purpose and objective of Code § 15.1-492 in 

considering whether this authority necessarily is implied from 

the powers expressly granted by the statute. Gordon v. Fairfax 

County, 207 Va. 827, 833, 153 S.E.2d 270, 275 (1967). The 

statute must be given a rational interpretation consistent with 

its purposes, and not one which will substantially defeat its 

objectives. Mayor v. Industrial Dev. Auth., 221 Va. 865, 869, 

275 S.E.2d 888, 890 (1981); Norfolk Southern Ry. Co. v. Lassiter, 

193 Va. 360, 364, 68 S.E.2d 641, 643 (1952). 

 The purpose of statutes such as Code § 15.1-492 is to 

preserve rights in existing lawful buildings and uses of land, 

subject to the rule that public policy opposes the extension and 

favors the elimination of nonconforming uses. See 8A Eugene 
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McQuillin, Municipal Corporations § 25.184 (3d ed. 1994). 

Nonconforming uses are not favored in the law because they 

detract from the effectiveness of a comprehensive zoning plan. 

See, e.g., Annotation, Construction of New Building or Structure 

on Premises Devoted to Nonconforming Use as Violation of Zoning 

Ordinance, 10 A.L.R.4th 1122, § 2[a] (1981). 

 Code § 15.1-492 expressly grants local governments the power 

to regulate existing structures. Implicit in such power is the 

authority to regulate new construction. This power necessarily 

is implied from the statutory language protecting nonconforming 

uses only "so long as the buildings or structures are maintained 

in their then structural condition." 

 To interpret the statute otherwise would allow a property 

owner to build additional structures in support of a 

nonconforming use, but would prohibit that owner from enlarging, 

reconstructing, moving, or repairing an existing building or 

structure on the same property. Under such an interpretation, 

Greenlawn would be required to obtain a conditional use permit to 

enlarge, extend, move, or reconstruct an existing mausoleum, but 

could construct any number of additional mausoleums on the 

property without obtaining a conditional use permit. 

 Such an interpretation would thwart the legislative 

objective of granting local governments the authority to regulate 

changes pertaining to nonconforming uses. In contrast, the 

interpretation we adopt permits local governments to regulate 
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such changes, while preserving the property owner's vested right 

to conduct the nonconforming use. 

 We disagree with Greenlawn that Knowlton v. Browning-Ferris 

Industries of Virginia, 220 Va. 571, 260 S.E.2d 232 (1979), 

requires a different result. In Knowlton, Fairfax County alleged 

that the defendants were no longer maintaining a valid 

nonconforming use, because the hog raising and general trucking 

operation conducted when the County was initially zoned had 

developed into a specialized refuse collection and disposal 

business. Id. at 576, 260 S.E.2d at 237. 

 In holding that the character of the use had changed, we 

recognized that a nonconforming use need not remain static, and 

that an increase in size or scope of the use is merely one 

circumstance relevant to a determination whether the character of 

the use has changed. Id. These principles, however, are not at 

issue here because the City does not contend that Greenlawn seeks 

to change the character of its nonconforming use. Instead, as 

stated above, the issue is whether a municipality has the power, 

necessarily implied from Code § 15.1-492, to prohibit the 

construction of additional buildings supporting a nonconforming 

use. 

 We also conclude that Greenlawn's reliance on Board of 

Supervisors v. Trollingwood Partnership, 248 Va. 112, 445 S.E.2d 

151 (1994), is misplaced. The issue presented there was whether 

a property owner's site plans for earlier phases of a development 
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were sufficient to create a vested property right permitting the 

property owner to expand its development of the nonconforming use 

to an additional land area for which no site plans had been 

approved. We held that the site plans for the earlier phases 

were insufficient to give the property owner a vested right in 

developing the additional area of the property. Id. at 115, 445 

S.E.2d at 152-53. 

 We reject Greenlawn's assertion that this holding protects 

the expansion of any nonconforming use that has not increased in 

land area or changed in character. Those issues were not 

addressed in Trollingwood and are not supported by its holding. 

 For these reasons, we will reverse the trial court's 

judgment and enter final judgment in favor of the City. 

Reversed and final judgment.