Present: All the Justices 

BOARD OF SUPERVISORS 

OF ROCKINGHAM COUNTY 

 OPINION BY 

v. Record No. 003006 CHIEF JUSTICE HARRY L. CARRICO 

 January 11, 2002 

WILLIAM S. STICKLEY 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 This is an appeal in a zoning case, and the dispositive 

question is whether a fairly debatable issue was presented by 

the decision of the Board of Supervisors of Rockingham County to 

deny William S. Stickley a special use permit to raise and 

release game birds on his farm. The trial court found the issue 

was not fairly debatable and held the denial was unreasonable, 

arbitrary, and capricious. We disagree with the trial court and 

will reverse. 

 William S. Stickley is a physician who owns and resides on 

a farm containing over two hundred acres in Rockingham County 

zoned General Agricultural A-2. In the county, commercial 

poultry production is one of the primary industries. The county 

ranks among the top ten nationwide in turkey production. Three 

of the top ten taxpayers in the county are poultry producers 

employing more than 8,500 people in 1999, not counting 

individuals who are "poultry farmers." 

 Poultry farmers are independent farmers who receive "young 

chicks" from poultry companies and "house the birds by the tens 
of thousands in poultry houses" until the birds are "grown out" 

and then retrieved by the companies for further processing. The 

poultry farmers are responsible for the birds' feeding and 

health while in their possession. 

 Dr. Stickley is a poultry farmer for Rocco Enterprises, 

Inc., a commercial poultry company. He has "one poultry house 

on a 15 acre parcel located in the middle of his land which is 

surrounded by the would be shooting preserve involved in this 

case." Fifteen acres "is the requirement for a turkey house." 

Dr. Stickley can maintain as many as 35,000 turkeys in his 

poultry house at one time. 

 Also, "for the last few years," Dr. Stickley has been 

raising upland game birds in pens on his farm and releasing them 

for hunting during the regular season. Rocco Enterprises has no 

objection to his raising game birds on his property at the same 

time he raises commercial turkeys. 

 Game birds can carry various diseases that can be 

transmitted to other species, including avian influenza, 

Newcastle disease, laryngotracheitis, equine encephalitis, 

salmonella pullorum, blackhead, and fowl cholera. In a poultry 

producing area such as Rockingham County, the possibility of an 

epidemic in any of these diseases is the subject of great 

concern because of the potentially devastating effect upon the 

poultry industry in particular and the economy of the entire 

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area in general, with the possibility of a ban being imposed 

upon exports of poultry from the county. 

 Avian diseases can be transmitted to other forms of animal 

life in a number of ways. Avian flu is especially feared. It 

is spread through airborne transmission as well as nasal and 

fecal excretions, and its virus remains infectious for 

relatively long periods of time. Migratory waterfowl represent 

an especially serious threat to poultry in transmitting avian 

flu; waterfowl drop feces near farm ponds and the fecal matter 

may get on the boots of poultry workers who then enter poultry 

houses in their contaminated footwear. 

 In 1983-84, Rockingham County suffered an avian flu 

epidemic, resulting in the destruction of many flocks of 

poultry. Since that time, the poultry industry has instituted 

the practice of biosecurity, a system designed "to keep 

everything that could spread . . . disease out of the poultry 

house." Biosecurity includes "doing things as simple as 

changing clothes and boots before going into a poultry house or 

spraying all entrants before entering a confined feeding space." 

Biosecurity also includes utilizing "'all in, all out' flock 

control which means that prior to the birds going into the 

house, the poultry house is washed down, sterilized and 

disinfected and then all the birds are put in at one time and 

taken out at one time." In addition, the birds in poultry 

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houses are isolated, with only limited human entry into the 

houses permitted. 

 In his turkey operation, Dr. Stickley practices "all the 

biosecurity" recommended by Rocco Enterprises. In addition, he 

voluntarily installed a chlorinating system that is now a 

required feature. His yearly average of "liveability" in his 

turkey flocks is 97 percent, which is considered "extremely 

good." His turkeys have been infected from the environment only 

once, with blackhead, which "[m]ost likely . . . would come in 

from . . . worms through the floor or possibly even a rodent." 

 Dr. Stickley obtains his pen-reared game birds by 

purchasing "day-old chicks . . . a thousand chicks at a time" or 

by hatching eggs either purchased from out-of-state suppliers or 

derived from his own breeding stock. The eggs purchased out-ofstate are certified to be "salmonella and typhoid free." 

 Some time prior to September 15, 1997, Dr. Stickley applied 

to the Virginia Department of Game and Inland Fisheries (the 

Department) for a permit to propagate and sell chukar, northern 

bobwhite quail, and ring-necked pheasant, and on that date the 

Department issued the permit. Among the permit's provisions was 

a statement that the permittee was not absolved "of any 

responsibilities or conditions of any other federal, state, or 

local laws and regulations." 

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 The Department permits hunting on licensed shooting 

preserves in Virginia for a season that extends two months 

longer than the regular game bird hunting season. On September 

10, 1997, Dr. Stickley filed an application with the Department 

to operate a licensed shooting preserve on a designated 100-acre 

portion of his farm, stating he wished to hold and hunt penreared quail, chukar, and pheasant. In response to a statement 

on the application that "I am in compliance with all zoning and 

land use requirements," Dr. Stickley did not check either the 

"yes" or "no" box but wrote the word "pending" outside the 

boxes. The Department issued Dr. Stickley the permit he had 

requested to operate a licensed shooting preserve. 

 About the same time, Dr. Stickley inquired of the 

Rockingham County Zoning Administrator "what he would need to 

[do to] have . . . a shooting reserve, which would include the 

raising of game birds and releasing them for hunting." A zoning 

inspector advised Dr. Stickley he would need a special use 

permit. Accordingly, on September 10, 1997, Dr. Stickley filed 

a special use permit application for a private shooting preserve 

on a 100-acre portion of his farm. 

 The Board of Supervisors (the Board) conducted a public 

hearing on the application but tabled the request and decided to 

make a site visit. On the visit, the Board apparently learned 

for the first time that Dr. Stickley raised turkeys on his farm 

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for a commercial poultry company. After the visit, the Board 

directed the zoning administrator to contact the Poultry 

Foundation and representatives of the poultry industry "to get 

their feedback." The zoning administrator made the contacts and 

submitted her report to the Board voicing the concerns of the 

Poultry Federation and several poultry companies about "[w]ild 

birds carry[ing] diseases into poultry flocks." At its regular 

meeting on November 19, 1997, the Board unanimously denied Dr. 

Stickley's request for a special use permit. 

 Dr. Stickley then filed in the trial court a Petition for 

Review and an Amended Petition for Review. In the amended 

petition, he prayed that the court issue a writ of certiorari to 

the Board commanding it to certify its record to the court and 

that the court declare the action of the Board null and void. 

The Board responded to the amended petition, and the court 

proceeded to hear extensive evidence ore tenus on the risk to 

the poultry industry in Rockingham County from diseases carried 

by wild birds. Finding that "the action of the County Board of 

Supervisors was one that was not fairly debatable, and was thus 

unreasonable, arbitrary and capricious," the court overturned 

the Board's denial of Dr. Stickley's application for a special 

use permit. We awarded the Board this appeal. 

 On appeal, Dr. Stickley devotes a portion of his argument 

to the proposition that the Board lacked the authority to use 

6
its zoning ordinance "to prevent the transmission of infectious 

diseases to commercial flocks of turkeys and chickens raised in 

poultry houses." However, Dr. Stickley raised this same issue 

in a pretrial motion for summary judgment, and the trial court 

denied the motion, ruling that "the Board of Supervisors clearly 

has authority to prohibit the raising of game birds from eggs so 

long as that authority is not otherwise pre-empted by enactments 

of the Legislature or utilized in a manner which otherwise 

violates the law." Dr. Stickley has not assigned cross-error to 

this ruling. Accordingly, it has become the law of the case, 

and we will not consider the issue further. See Norfolk & 

Portsmouth Belt Line R.R. Co. v. Barker, 221 Va. 924, 928, 275 

S.E.2d 613, 615 (1981). 

 Dr. Stickley also argues that, because the trial court 

heard the evidence ore tenus, "its factual findings carry the 

same weight as [a] jury's verdict." However, this case involves 

legislative action by the Board. See County Board of Arlington 

v. Bratic, 237 Va. 221, 226, 377 S.E.2d 368, 370 (1989). In 

such a case, while we accord the trial court's finding the usual 

presumption of correctness, we also accord the legislative 

action a presumption of validity. Fairfax County v. Jackson, 

221 Va. 328, 334, 269 S.E.2d 381, 385 (1980). " 'In other 

words, the presumption of validity of legislative action does 

not disappear when a trial court finds that the action is 

7
unreasonable; the presumption accompanies the legislative action 

when the latter is brought to this court for review, and it is 

viable until this court holds with the trial court that the 

legislative action is unreasonable.' " Id. (quoting Loudoun 

County v. Lerner, 221 Va. 30, 35, 267 S.E.2d 100, 103 (1980)). 

 We said in Bratic that we have established the following 

test for determining whether the presumption of reasonableness 

of legislative action should stand or fall: 

If the presumptive reasonableness of zoning action is 

challenged by probative evidence of unreasonableness, the 

challenge must be met by evidence of reasonableness. If 

such evidence of reasonableness is sufficient to make the 

issue fairly debatable, the legislative action must be 

sustained; if not, the presumption is defeated by the 

evidence of unreasonableness and the legislative act cannot 

be sustained. 

237 Va. at 227, 377 S.E.2d at 371. 

 However, "[t]he governing body is not required to go 

forward with evidence sufficient to persuade the fact-finder of 

reasonableness by a preponderance of the evidence [but] must 

only produce evidence sufficient to make the question 'fairly 

debatable.' " Ames v. Town of Painter, 239 Va. 343, 348, 389 

S.E.2d 702, 704 (1990). And " '[a]n issue may be said to be 

fairly debatable when, measured by both quantitative and 

qualitative tests, the evidence offered in support of the 

opposing views would lead objective and reasonable persons to 

8
reach different conclusions.' " Id. (quoting Bratic, 237 Va. at 

227, 377 S.E.2d at 371). 

 Dr. Stickley argues that "the disease issue" in this case 

"is not fairly debatable." He says he presented four expert 

witnesses, all of whom confirmed "that there is no risk of 

transmission of diseases from game birds to commercial poultry 

given the biosecurity measures adopted by the commercial poultry 

industry." Dr. Stickley also says that all the experts, 

including the Board's expert, agreed "there is no documented 

incident where captive pen-raised game birds resulted in any 

kind of disease problem for commercial poultry." 

 In what turned out to be a battle of the experts, Dr. 

Stickley presented Robert W. Duncan, a certified wildlife 

biologist and director of the wildlife division of the Virginia 

Department of Game and Inland Fisheries; Ronald G. King and 

Gabriel Meza, veterinarians with the Virginia Department of 

Agriculture and Consumer Services, both stationed in Rockingham 

County; and Roger E. Olson, a veterinarian who is chief of the 

animal health program of the Maryland Department of Agriculture. 

The Board presented Elizabeth A. Krushinskie, a "[c]orporate 

veterinarian" for Wampler Foods, a commercial poultry company in 

Rockingham County. 

 Mr. Duncan testified that, in his twenty-two years with the 

Department of Game and Inland Fisheries, he was not aware of any 

9
documented harmful effect to poultry operations from the raising 

and releasing of game birds or the operation of shooting 

preserves. Mr. Duncan tempered his testimony somewhat with the 

statement that "there's neither a realistic nor a documented 

case where captive-reared game birds have caused the disease 

outbreak in domestic poultry given where those are separated by 

the confinement and biosecurity that's presently employed." 

And, while Mr. Duncan was "not sure if it is possible" for game 

birds to carry avian flu, he conceded "there are a variety of 

other diseases which would affect commercial poultry that game 

birds do carry and are natural hosts for." 

 Dr. King testified concerning an outbreak of avian flu 

occurring in two turkey houses on a farm in northern Rockingham 

County some thirteen months prior to the trial below, resulting 

in a decision to "depopulate . . . the entire farm" by 

slaughtering 58,000 turkeys and causing the farmer to "suffer 

financially." The farm was placed under quarantine, the turkeys 

were loaded on covered trucks whose wheels and undercarriages 

were disinfected, and the trucks followed a predetermined route 

so they would pass "the least number of poultry farms" to and 

from the slaughter facility. 

 Dr. King attributed the outbreak to "migrating waterfowl 

that utilized a farm pond" and "either the farmer or some of the 

workers probably walked in loose manure from the feces from the 

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migrating waterfowl . . . and carried it into the poultry house 

and, from there, from one poultry house to the other." Dr. King 

emphasized the importance of biosecurity but admitted there are 

"breaches in biosecurity . . . because someone got in a hurry 

and just wasn't thinking." And, contrary to Dr. Stickley's 

assertion that all the experts agreed "there is no documented 

incident where captive pen-raised game birds resulted in any 

kind of disease problem for commercial poultry," Dr. King voiced 

no such agreement. Furthermore, he conceded that game birds 

"can transmit avian flu" to poultry, and he said it was possible 

the recent outbreak of that disease on the farm in northern 

Rockingham County originated with game birds. 

 Dr. Meza testified he had never found an instance in 

Rockingham County where avian flu was transmitted from game 

birds to poultry. He opined that biosecurity "is the only way 

to prevent" the spread of disease into poultry flocks and that 

"if we don't get lax in the biosecurity . . . we will never have 

what happened in 83, 84," when Rockingham County suffered an 

avian flu epidemic. He also said that "[w]ith good 

biosecurity," meaning to have poultry flocks in "isolation," he 

did not consider it a "big risk" to have pheasants, quail, and 

chukar "walking around outside the poultry house." He 

acknowledged, however, that "it's almost impossible to make it 

completely safe" but that "you can minimize . . . [t]he risk." 

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He also conceded that game birds were the "natural hosts" of 

pullorum and other avian diseases. 

 Dr. Olson testified concerning an instance on the Eastern 

Shore of Maryland in 1993, when avian flu was found in a 

pheasant that was part of a confined flock of 30,000 game birds. 

It was Dr. Olson's opinion that the virus did not originate in 

the confined flock but likely was transmitted from ducks that 

got out and returned to the flock after commingling with wild 

waterfowl. Although the confined flock was subjected to "total 

depopulation," Dr. Olson said "it is now generally accepted that 

the risk to commercial poultry flocks was negligible." 

 However, contrary to Dr. Stickley's assertion that all his 

experts confirmed "there is no risk of transmission of diseases 

from game birds to commercial poultry given the biosecurity 

measures adopted by the . . . industry," Dr. Olson testified it 

was not his position, and he would never say, that "there is 

absolutely no risk of transmission of avian flu from game birds 

to poultry." There is "a big difference," he said, "between 

negligible and absolutely no risk." And he conceded there are 

"several significant" diseases in addition to avian flu "that 

can be spread from game birds to poultry and vice versa." 

 At this juncture, we note several troubling points in Dr. 

Stickley's evidence. Dr. Stickley's turkey house is "surrounded 

by the would be shooting preserve involved in this case." Dr. 

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Stickley raises game birds in large quantities and releases them 

on the shooting preserve that surrounds his turkey house. Dr. 

Stickley's expert witnesses concede game birds serve as "natural 

hosts" or "carriers" in the transmission of avian diseases to 

poultry.1 Protection against the risk of the spread of avian 

diseases to poultry is dependent upon the effectiveness of 

biosecurity. The effectiveness of biosecurity is subject to the 

ever-present risk of human error. Human error of substantial 

proportions occurred in the avian flu outbreak in Rockingham 

County just thirteen months prior to the trial of this case 

below. Given all this, there is reason to doubt the sufficiency 

of Dr. Stickley's evidence to challenge the presumptive 

reasonableness of the Board's decision to deny him a special use 

permit. 

 However, we will give Dr. Stickley the benefit of the doubt 

and say his evidence is sufficient to challenge the presumptive 

reasonableness of the Board's decision. The question then 

becomes whether the Board has met the challenge with evidence of 

reasonableness sufficient to make the issue fairly debatable. 

See Bratic, 237 Va. at 227, 377 S.E.2d at 371. 

 As noted supra, the Board presented as its expert witness 

Dr. Elizabeth Krushinskie, a veterinarian with a commercial 

 1

 Being a "host" to a disease means being "home to a virus, 

a parasite, a bacterium." 

13
poultry company. She earned her Ph.D. in "Veterinary 

Microbiology, Avian Influenza," and her expertise is in 

commercial poultry.2 Her employment includes managing bird 

health, disease prevention, biosecurity, and investigation of 

disease outbreaks. She testified concerning the diseases that 

affected poultry in Rockingham County. While she acknowledged 

she had not had "personal experience with any game birds 

infecting poultry," she opined that diseases could be 

transmitted from game birds to poultry. With specific reference 

to avian flu, Dr. Krushinskie testified that, while waterfowl 

constitute a "major source of Avian Flu," "game birds are a 

carrier" and "a host of influenza." 

 Dr. Krushinskie stated that biosecurity in the commercial 

poultry industry is "relatively good" but not "100 percent" 

perfect. She told of a poultry farm that had tested positive 

for avian flu twice in the past five years when there had been 

no "direct entrance of waterfowl into the turkey operation or 

turkeys into the ponds adjacent to it," but, "somehow, that 

 2

 Dr. Stickley states on brief that "Dr. Krushinskie 

admitted that she is not an expert in the area of game birds," 

that "[s]he did not know anything about what types of other 

birds have been raised in [Rockingham] County," that "[s]he had 

not familiarized herself with any reports of diseases of game 

and wildlife in Virginia," and that "[s]he was not even familiar 

with the Southeastern Game and Wildlife Diagnostic Center in 

Athens, Georgia." 

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virus [was] able to penetrate, gain access to that turkey 

operation." And, she said, "[w]e don't know how." 

 Finally, Dr. Krushinskie was asked the following questions 

and gave the following answers in the course of her testimony: 

 Q Dr. Krushinskie, if you were told of an instance of 

game birds being found outside of a poultry house, would 

you consider that a risk of disease transmission? 

 A Yes. 

 . . . . 

 Q In your expert opinion, is it . . . a realistic 

threat of contamination or spreading of disease between 

game birds which are released for sport, for shooting, and 

commercial poultry? 

 A In my opinion, the concentrated rearing of game 

birds and their subsequent release into the environment 

adjacent to poultry, commercial poultry operations is a 

significant risk to the poultry industry in this area. 

 Q And if there is a spread of disease from those two 

flocks, it's capable of spreading to other flocks and 

through – 

 A Yes. And the reason I say that is because if you 

have an occasional pheasant in the wild, naturally, they're 

a dispersed population with relatively few individuals per 

square mile. But when you go to high density confinement 

rearing, whether it's poultry or game birds, you compound

the stress, the disease exposure and the possibility for 

replication of diseases. And that's why we see more 

disease in commercial operations than you would in a few 

chickens in your backyard. It's because of the high 

density, the number of individuals you have, the kind of 

production pressure they're under in a small environment 

being artificially reared. 

 If you do that with game birds, you increase their 

risk of developing disease themselves. Then when you 

release them into the environment, you create a risk for 

other poultry or other birds in the area. I think that's a 

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significant difference from just a natural pheasant running 

through the area. [Emphasis added.] 

 The question in this case is not who presented the greatest 

number of expert witnesses or even who won the battle of the 

experts. Rather, the question is whether there is any evidence 

in the record sufficiently probative to make a fairly debatable 

issue of the Board's decision to deny Dr. Stickley a special use 

permit. In our opinion, Dr. Krushinskie's common-sense 

appraisal of the "significant risk" to poultry from the release 

of pen-raised game birds is amply sufficient to make that issue 

fairly debatable. The Board did not act arbitrarily, therefore, 

in denying Dr. Stickley a special use permit.3 Accordingly, we 

will reverse the judgment of the trial court and enter final 

judgment here in favor of the Board. 

Reversed and final judgment. 

 3

 Having reached this conclusion, we need not consider any 

other questions raised by the Board. 

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