Present: All the Justices 

COUNTY OF CHESTERFIELD, ET AL. 

 OPINION BY 

v. Record No. 010523 CHIEF JUSTICE HARRY L. CARRICO 

 March 1, 2002 

WINDY HILL, LTD., ET AL. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Code § 4.1-128(A), part of the Alcoholic Beverage Control 

Act, provides in pertinent part that "[n]o county, city, or town 

shall . . . adopt any ordinance or resolution which regulates or 

prohibits the manufacture, . . . drinking, use, . . . or 

dispensing of alcoholic beverages in the Commonwealth." Code 

§ 4.1-128(C) provides in pertinent part that "all local acts, 

including charter provisions and ordinances of cities and towns, 

inconsistent with any of the provisions of this title, are 

repealed to the extent of such inconsistency." 

 In City of Norfolk v. Tiny House, Inc., 222 Va. 414, 281 

S.E.2d 836 (1981), we held that the Alcoholic Beverage Control 

Commission's1 "exclusive authority to license and regulate the 

sale and purchase of alcoholic beverages in Virginia does not 

preclude a municipality from utilizing valid zoning ordinances 

to regulate the location of an establishment selling such 

 1

At the time Tiny House was decided, the body regulating 

alcoholic beverages in this Commonwealth was called the Virginia 

Alcoholic Beverage Control Commission. In 1985, the General 

Assembly changed "Commission" to "Board" in an enactment 
alcoholic beverages." Id. at 423, 281 S.E.2d at 841. The 

question in the present case is whether Tiny House controls 

when, as here, the issuance by a county of a conditional use 

permit for a particular activity on a parcel of land is made 

subject to the condition that "[n]o alcoholic beverages shall be 

permitted" on the property. 

 Seeking enforcement of this condition, the County of 

Chesterfield and its Director of Planning, Thomas Jacobson 

(collectively, the County), filed in the trial court a bill of 

complaint for injunctive relief against E. M. Ciejek, Inc. 

(Ciejek), owner of the property subject to the condition, and 

Windy Hill, Ltd. (Windy Hill), the lessee of the property. The 

trial court heard the case on cross-motions for summary judgment 

filed by the County and Windy Hill and on a demurrer filed by 

Ciejek. 

 Windy Hill's motion for summary judgment was based upon the 

proposition that Condition No. 9 is a prohibition measure 

designed to prohibit the use of alcohol contrary to Code § 4.1-

128(A), that the condition is inconsistent with state law 

contrary to Code § 1.13-17,2 and that the condition is therefore 

void and repealed by Code § 4.1-128(C). These grounds form the 

 

effective July 1, 1986. 1985 Va. Acts ch. 448. We will use 

"Commission" when appropriate and "Board" when appropriate. 

2
sole basis for Windy Hill's attack on the validity of Condition 

No. 9. 

 The trial court denied the County's motion for summary 

judgment but granted Windy Hill's motion and also sustained 

Ciejek's demurrer. We awarded the County this appeal. 

 Because the case was decided on motions for summary 

judgment and a demurrer, we will state the facts as alleged in 

the County's bill of complaint and draw inferences therefrom in 

the light most favorable to the County, the non-moving party, 

unless the inferences are strained, forced, or contrary to 

reason. Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 

95, 546 S.E.2d 696, 699 (2001). 

 The property in question consists of a 176-acre parcel of 

land located on Midlothian Turnpike in Chesterfield County. The 

county zoning ordinance places the land in an agricultural 

district in which certain uses, including "outdoor recreational 

establishment[s]," are permitted only upon the issuance of a 

conditional use permit. 

 In 1981, Ciejek applied to the Board of Supervisors of 

Chesterfield County for a conditional use permit to operate a 

sports complex, which qualified as an "outdoor recreational 

establishment," on the 176-acre parcel. The filing of the 

 2

 Code § 1.13-17 provides that local ordinances "must not be 

inconsistent with the Constitution and laws of the United States 

3
application "generated significant community opposition." 

However, as a result of negotiations among the County's planning 

staff, Ciejek, and area property owners, Ciejek "agreed to [ten] 

conditions and restrictions upon the use of [its] property."

 On November 25, 1981, the Board of Supervisors approved 

Ciejek's request for a conditional use permit subject to the 

conditions that had been agreed to. Included was Zoning 

Condition No. 9, which provided that "[n]o alcoholic beverages 

shall be permitted" on the property. Thereafter, the sports 

complex was constructed and Windy Hill became its operator. 

 In 1990, Windy Hill filed a zoning application seeking an 

amendment of the zoning conditions to permit the sale and 

consumption of alcoholic beverages at the sports complex. On 

January 23, 1991, the Board of Supervisors denied the 

application. On two other occasions, once in 1992 and again in 

1996, Windy Hill sought permission from the Board of Supervisors 

to expand the conditional use permit to include additional 

property adjacent to the sports complex. On both occasions, the 

Board of Supervisors granted permission after Windy Hill agreed 

that Zoning Condition No. 9 would remain in effect. 

 In June 1999, Windy Hill applied to the Virginia Alcoholic 

Beverage Control Board (the ABC Board) for a license to sell and 

serve beer at the sports complex. The County objected to the 

 

or of this Commonwealth." 

4
issuance of a license on the ground that the sale of alcohol at 

the complex would violate the applicable zoning conditions. On 

March 20, 2000, the ABC Board granted Windy Hill a beer onpremises license. In its Final Decision and Order Granting 

License, the ABC Board dismissed the County's objection and 

stated as follows: 

[W]hether the restriction against the sale of alcoholic 

beverages included in the conditional use permit granted by 

the County of Chesterfield for the applicant premises is 

enforceable under the County's Zoning power is not within 

the Board's jurisdiction and is properly the subject of 

proceedings between the County and property owner in a 

court of competent jurisdiction. 

Windy Hill is currently selling beer on the premises pursuant to 

the ABC license. 

 In sustaining Windy Hill's motion for summary judgment, the 

trial court in a letter opinion found a conflict between 

Condition No. 9 and the ABC Board's exclusive authority to 

regulate the use of alcohol. The trial court said a conflict 

existed because "there is nothing in [the conditional use] 

permit that states that the prohibition of alcohol is for zoning 

purposes or for the general health and safety of the community." 

Without such a statement, the trial court opined, Condition No. 

9 "directly conflicts with the powers granted to the ABC [Board] 

and amounts to a prohibition measure" forbidden by Code § 4.1-

128(A) because it "effectively prohibits every conceivable use 

of alcohol on the premises." 

5
 The County contends the trial court's requirement of a 

statement of zoning purpose in a conditional use permit "is 

erroneous because there is no such requirement imposed under 

Virginia law." Windy Hill does not even mention such a 

requirement, let alone defend it, and for good reason – the 

trial court cited no authority for the requirement, and we have 

found none. 

 Furthermore, there is inherent in every zoning ordinance 

"the general purpose of promoting the health, safety or general 

welfare of the public." Code § 15.2-2283. The zoning ordinance 

of Chesterfield County in effect when the conditional use permit 

was issued in 1981 echoed this general purpose, see former 

Chesterfield County Code § 21-1, and the same is true of the 

present zoning ordinance, see current Chesterfield County Code 

§ 19-1. We hold that the lack of a statement of zoning purpose 

in Condition No. 9 did not create a conflict between the 

condition and the powers of the ABC Board. 

 Nor does Condition No. 9 otherwise conflict with the powers 

granted the ABC Board. Condition No. 9 is comparable to the 

zoning provisions at issue in Tiny House, supra. There, the 

zoning ordinance of the City of Norfolk defined certain "adult 

uses," which included establishments "for the sale of beer, 

wine, and/or mixed beverages for on-premises consumption." 222 

Va. at 426, 281 S.E.2d at 843. The ordinance noted the "serious 

6
objectionable operational characteristics [inherent in adult 

uses], particularly when several of them are concentrated . . . 

or located in direct proximity to residential neighborhoods." 

Id., 281 S.E.2d at 842-43. The ordinance required "use permits 

for adult uses," id. at 425, 281 S.E.2d at 842, and provided 

that "no such permit shall authorize such use or structure less 

than 500 feet from any residential district boundary," id. at 

426, 281 S.E.2d at 843, and that "no more than two such uses 

shall be located within 1000 feet of each other," id. at 427, 

281 S.E.2d at 843. 

 Tiny House applied for a use permit to sell beer for onpremises consumption in a restaurant on commercially zoned 

property located within 1000 feet of other adult uses. The City 

Planning Commission recommended denial of the permit. While the 

matter was pending before City Council, Tiny House withdrew its 

application, sought and received a license from the ABC 

Commission to serve beer for on-premises consumption, and began 

selling beer. The City then sought to enjoin such sale. The 

trial court refused injunctive relief, and the City of Norfolk 

appealed. 

 On appeal, Tiny House argued that "even though the City's 

Ordinance may be a legitimate exercise of its police power, the 

City may not regulate the location and concentration of 

establishments selling alcoholic beverages" because "the General 

7
Assembly granted this exclusive authority to the ABC 

Commission." 222 Va. at 421, 281 S.E.2d at 840. Tiny House 

then argued that "when a city ordinance conflicts with a state 

statute, the state statute will prevail." Id. Finally, Tiny 

House argued that " 'a reading of the Virginia Beverage Control 

Act in its entirety [demonstrates] that the state legislature 

intended to control the whole of the law . . . relating to and 

concerning alcoholic beverages.' " Id.

 We responded as follows: 

 We agree that in conflicts between state law and 

municipal law, state law must control. We reject Tiny 

House's contention that the General Assembly, by enacting 

the ABC Act, intended to prohibit local governments from 

utilizing zoning as a means of controlling the location and 

concentration of establishments selling alcoholic 

beverages. 

Id. Further, we stated as follows: 

 If this court adopted Tiny House's argument, we would 

be granting the ABC Commission the exclusive right to 

determine the location of establishments selling alcoholic 

beverages. Counsel for Tiny House conceded that if the ABC 

Act preempts local zoning ordinances regarding the location 

and concentration of this type of establishment, then the 

ABC Commission could grant a license for such an 

establishment in a residential area and the local 

government would be powerless to prevent it. 

 We find no manifest intention on the part of the 

legislature to grant such sweeping and unbridled authority 

to the ABC Commission. There is no language in the ABC Act 

which takes from local governments the powers conferred 

upon them by zoning statutes to regulate land use. The 

General Assembly intended to grant the ABC Commission 

exclusive authority to control the ". . . use . . . or 

dispensing of alcoholic beverages in Virginia." [The 

General Assembly] did not intend to usurp the police power 

8
of local governments or to prevent them from achieving the 

orderly use of land through zoning ordinances. When there 

is no conflict between the terms of the ABC Act and those 

of a municipal ordinance, the ordinance may stand. We hold 

that the ABC Commission's exclusive authority to license 

and regulate the sale and purchase of alcoholic beverages 

in Virginia does not preclude a municipality from utilizing 

valid zoning ordinances to regulate the location of an 

establishment selling such alcoholic beverages. 

222 Va. at 422-23, 281 S.E.2d at 841 (citations omitted). 

 Finally on the conflict point, we stated as follows: "We 

find no conflict between any provision in the Acts of the 

General Assembly regulating alcoholic beverages and the 

Ordinance of the City of Norfolk enacted pursuant to Acts of the 

General Assembly concerning municipal zoning." Id. at 424, 281 

S.E.2d at 842. Likewise, we find no conflict here. 

 Windy Hill attempts to distinguish Tiny House on the ground 

that, while the County defines the word "location" as meaning 

" 'site specific,' " "what the Supreme Court meant by 'location' 

[in Tiny House] is 'zoning district.' " This definition of 

"location," Windy Hill submits, is derived from the powers 

granted localities "to regulate the 'use of land' by dividing it 

into various districts and then setting forth what types of 

'land uses' can be done in each district." 

 Windy Hill admits that its definition of "location" also 

"applies to conditional zoning cases," but it says "the 

'conditions' must relate to 'land uses,' not 'alcohol uses.' " 

Windy Hill maintains that this case is a prime example of the 

9
necessity to define "location" the way Windy Hill defines it. 

Windy Hill points out that "[o]f the ten conditions of the 

ordinance [granting the conditional use permit], all but 

Condition 9 legitimately relate to the 'use of land,' " and only 

Condition No. 9 "attempts to usurp the power of the ABC 

Commission by prohibiting the 'use of alcohol.' " Windy Hill 

submits that "[t]he prohibition against alcohol in Condition 9 

of the Ordinance is inconsistent with State law, and was 

therefore repealed by Code Sec. 4.1-128C eo instanti upon its 

enactment." 

 On the other hand, Windy Hill asserts, the Norfolk zoning 

ordinance applied in Tiny House "is not a prohibition against 

alcohol" but an "ordinance . . . designed to prevent 'red light 

districts,' not by prohibiting them, or the alcohol they serve, 

but by preventing their 'concentration' " rather than their 

location. Windy Hill submits that the Norfolk ordinance twice 

states in its preamble that "its purpose is to prevent the 

'concentration' of such adult establishments" and that the "Tiny 

House opinion refers to the 'clustering' of such uses." Thus, 

Windy Hill concludes, Tiny House only stands for the proposition 

that localities may prevent the concentration of adult uses in 

zoning districts; it does not allow localities to "dictate that 

an adult establishment serving alcohol cannot be located on any 

specific piece of property." 

10
 We disagree with Windy Hill; we are of opinion that Tiny 

House is indistinguishable. It is true that the Norfolk zoning 

ordinance considered in Tiny House twice stated that its purpose 

was to prevent the concentration of adult uses. It is also true 

that in the Tiny House opinion we referred to the clustering of 

adult uses. But that does not mean Tiny House is authority only 

for a locality's power to prevent concentration and clustering. 

We also made these decisive references to location in Tiny 

House: 

 In this appeal we decide if the City, in the exercise of 

its police power, may enact a zoning ordinance regulating 

the location of an establishment selling alcoholic 

beverages. 

222 Va. at 416, 281 S.E.2d at 837 (emphasis added). 

We hold that the ABC Commission's exclusive authority to 

license and regulate the sale and purchase of alcoholic 

beverages in Virginia does not preclude a municipality from 

utilizing valid zoning ordinances to regulate the location

of an establishment selling such alcoholic beverages. 

Id. at 423, 281 S.E.2d at 841 (emphasis added).3

 3

Emphasizing the use of the word "valid" in the text 

quotation from Tiny House, Windy Hill argues that in order for 

localities to utilize zoning ordinances to regulate the location 

of establishments selling alcoholic beverages, the ordinances 

must be valid. "For an ordinance to be valid," the argument 

continues, "it must be consistent with state law," and 

"Condition 9 . . . is inconsistent with State law in that 

contrary to Code Sec. 4.1-128A it prohibits any and all use of 

alcohol anywhere on Windy Hill's property." However, from our 

finding supra that there is no conflict between Condition No. 9 

and the ABC Board's authority to regulate the sale and 

consumption of alcohol, it follows that Condition No. 9 is 

valid. 

11
 And we meant the word "location" to mean "location," i.e., 

"[t]he specific place or position of a person or thing." 

Black's Law Dictionary 951 (7th ed. 1999) (emphasis added). 

Under Tiny House's application of the Norfolk zoning ordinance, 

the placing of an adult use within 1000 feet of another adult 

use is as effectively "site specific" as the location specified 

in the conditional use permit involved in this case. Whether a 

particular establishment in a commercially zoned district could 

be licensed to sell alcohol was readily ascertainable by a mere 

measurement, and once the measurement showed the establishment 

was within 1000 feet of another adult use, that specific 

location became a forbidden place for the sale of alcohol to the 

same extent as the location involved here. 

 But, argues Windy Hill, Condition No. 9 is a prohibition 

measure outlawed by Code § 4.1-128(C). Tiny House answers this 

argument conclusively: 

The Ordinance under question is not a prohibition measure. 

It is not designed to prevent or control the use of alcohol 

or to regulate the business of those who dispense it. That 

is the exclusive province of the ABC Commission. The 

Ordinance seeks only to prevent the use of land in a manner 

the City has deemed detrimental to the general welfare of 

its inhabitants and deemed as having a deleterious effect 

on the community. The General Assembly has vested the 

authority in the City's legislative body to take this 

action. 

Id. at 424, 281 S.E.2d at 842. 

12
 Finally, Windy Hill argues that "[i]f the ordinance [in 

question] said that alcohol could not be served on golf courses, 

that would be an invalid attempt to control the 'use of alcohol' 

under Loudoun County [v. Pumphrey, 221 Va. 205, 269 S.E.2d 361 

(1980)] and Code Sec. 4.1-128A." There, a Loudoun County 

ordinance required a minimum cash refund value of five cents on 

every nonrefillable container in which beverages were offered 

for sale in the county. We held the ordinance invalid with 

respect to containers for beer and other malt beverages because 

the ordinance was inconsistent with state law and preempted by 

what is now Code § 4.1-128(A). 

 Loudoun County v. Pumphrey is inapposite. The case did not 

involve a zoning ordinance or the application of zoning 

principles and, hence, this Court did not consider the issue 

presented here. The Loudoun County ordinance attempted to 

regulate "the bottling of alcoholic beverages," 221 Va. at 207, 

269 S.E.2d at 363, not the location where they may be sold or 

consumed. The location where alcoholic beverages may be sold or 

consumed not only has far greater impact upon public health and 

safety than the bottling of alcoholic beverages but also 

implicates land use to a far greater extent, rendering location 

a proper subject for the application of zoning principles. We 

noted the effect of this dichotomy upon our decision in Tiny 

House when, in distinguishing Loudoun County v. Pumphrey, we 

13
said that "[t]he legislature has not granted localities the 

power to impose and collect deposits on beverage containers" but 

has granted localities "the authority to adopt and enforce 

zoning ordinances to ensure the orderly use of land." Tiny 

House, 222 Va. at 423, 281 S.E.2d at 841.4

 In conclusion, we will reverse the judgment of the trial 

court with respect to Windy Hill and remand the case for the 

entry of a permanent injunction against Windy Hill prohibiting 

it from further violation of Condition No. 9 of the conditional 

use permit. However, we will affirm the judgment with respect 

to Ciejek. As noted supra, the trial court sustained Ciejek's 

demurrer. One ground of the demurrer stated that the County's 

bill of complaint for injunctive relief "does not allege that 

Ciejek is violating any county ordinance or that Ciejek intends 

 4

 Also inapposite is an opinion of the Attorney General of 

Virginia, cited by Windy Hill, concerning an ordinance of the 

Town of Tazewell which provided that "[n]o alcoholic beverage 

. . . shall be sold, served or consumed on the premises occupied 

by a public dance hall." 1981-82 Op. Atty. Gen. 14. The 

Attorney General was asked whether the ordinance was in conflict 

with what is now Code § 4.1-128(A). The Attorney General 

responded that Loudoun County v. Pumphrey controlled because the 

Town had "not attempted to regulate the location of dance halls 

as it might under the Tiny House decision" but rather had sought 

to prohibit "the possession, sale, use and drinking of alcoholic 

beverages in dance halls." However, as we have demonstrated in 

the text, Tiny House controls here because Condition No. 9 

regulates the location where alcoholic beverages may be sold or 

consumed, and application of the condition is limited to the one 

establishment involved in the conditional use permit, unlike the 

Tazewell ordinance, which applied to all dance halls in the Town 

of Tazewell. 

14
to violate any county ordinance," and another ground stated that 

the bill of complaint "does not allege that Ciejek is violating 

or intends to violate any condition of zoning." There is no 

cause for the entry of an injunction unless the alleged wrong is 

actually occurring or "is actually threatened or apprehended 

with reasonable probability." WTAR Radio-TV Corp. v. City 

Council of Virginia Beach, 216 Va. 892, 895, 223 S.E.2d 895, 898 

(1976). An examination of the County's bill of complaint for 

injunctive relief reveals that, under the WTAR test, the bill is 

woefully deficient for the reasons assigned in the demurrer. 

The trial court was plainly right, therefore, in sustaining the 

demurrer. 

Affirmed in part,

reversed in part,

 and remanded.

15