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

Kinser, JJ., and Poff, Senior Justice 

ANNE F. DAIL, ET AL. 

v. Record No. 991591 OPINION BY JUSTICE ELIZABETH B. LACY 

 April 21, 2000 

YORK COUNTY, ET AL. 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 In this appeal, we consider whether the trial court 

properly held that the landowners' declaratory judgment action 

challenging provisions of zoning ordinances addressing 

silvicultural activity1 was premature because the landowners 

had not exhausted available administrative remedies and, 

alternatively, that the ordinances were valid. 

Anne F. Dail and her son, James T. Dail, III, (the Dails) 

own approximately 37 acres of undeveloped, wooded property in 

York County. The parcel is zoned RR (Rural Residential), a 

zoning classification which allows forestry as a use of right 

without a special use permit. The parcel was enrolled in York 

County's land use tax program as land devoted to forest use. 

In January 1998, the Dails informed the York County 

Zoning Administrator by letter that they intended to harvest 

timber on the tract. The Dails stated that they intended to 

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 "Silvicultural activity" means "any forest management 

activity, including but not limited to the harvesting of 

timber, the construction of roads and trails for forest 
comply with the best management practices for forestry 

promulgated by the State Forester but did not intend to comply 

with certain provisions of § 24.1-419 of the York County 

zoning ordinance, "Standards for Forestry Operations," (the 

Forestry Ordinance). The Dails' refusal to comply with parts 

of the Forestry Ordinance was based on their belief that such 

provisions were in conflict with, and preempted by, Code 

§ 10.1-1126.1. 

The zoning administrator responded that if the Dails 

harvested the timber without submitting a forest management 

plan or maintaining the buffer zone as required by the 

Forestry Ordinance, they would be in violation of the county 

zoning ordinance and would be subject to the penalties 

prescribed by law. 

The Dails proceeded to file a bill of complaint seeking a 

declaratory judgment and injunctive relief. They maintained, 

as they had in their letter to the zoning administrator, that 

certain portions of the Forestry Ordinance were preempted by 

Code § 10.1-1126.1 and, therefore, were invalid and ultra

vires. In response to the Dails' interrogatories, the County 

stated that the Dails' timber harvest proposal would also be 

subject to two additional sections of the County's zoning 

 

management purposes, and the preparation of property for 

reforestation." Code § 10.1-1181.1. 

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ordinance: § 24.1-376, "WMP-Watershed management and 

protection area overlay district," (WMP Ordinance); and 

§ 24.1-372, "EMA-Environmental management area overlay 

district," (EMA Ordinance). Based on this representation, the 

Dails filed an amended bill of complaint expanding their 

challenge to portions of the WMP and EMA Ordinances. 

The County filed a motion to dismiss and a special plea 

asserting the Ordinances were valid and that the Dails' 

complaint was premature because they had not exhausted their 

administrative remedies. The Dails filed a motion for summary 

judgment. 

Following argument of counsel, the trial court entered an 

order granting the County's motion to dismiss. The trial 

court held that the Dails had failed to exhaust their 

administrative remedies and that, "[e]ven if exhaustion of 

administrative remedies is not required," the Dails "conceded 

that the County's zoning regulations as they may be applied to 

them are not unreasonable, and the Court finds that the 

County's zoning regulations do not conflict with § 10.1-

1126.1, Code of Virginia, are not ultra vires, and, indeed, 

are reasonable and necessary, and serve to protect the health, 

safety and welfare of the public." The trial court's order 

also denied the Dails' motion for summary judgment. 

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On appeal, the Dails assert that the trial court erred in 

denying their motion for summary judgment because (1) they 

were not required to exhaust their administrative remedies; 

(2) state law preempts those provisions of the York County 

zoning ordinance that require zoning administrator approval 

for timber harvest and that prohibit timber harvest in certain 

areas; and (3) the limitations imposed on forestry by the York 

County zoning ordinance are invalid because they conflict with 

state law. We consider these assertions in order. 

I. Exhaustion of Administrative Remedies 

The threshold matter for determination is whether the 

challenge to the zoning ordinance raised by the Dails required 

them to exhaust their administrative remedies. The County 

argues that without the zoning administrator's review of the 

Dails' forest management plan, there is no indication of the 

extent, if any, that the zoning administrator would restrict 

the timber harvest proposed by the Dails. The County further 

argues that the Dails' challenge to the reasonableness of the 

County's ordinance "is properly the subject of an appeal to 

the BZA before an action can be instituted in circuit court." 

We disagree. 

The requirement that a landowner must exhaust his 

administrative remedies before filing a declaratory judgment 

action is based on the principle that courts do not address 

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issues based on circumstances which may never materialize. If 

the landowner can obtain a variance or other modification of 

the challenged ordinance as applied to his property, the 

landowner would no longer be prejudiced by the ordinance and 

would have no standing to attack the ordinance. Gayton 

Triangle Land Co. v. Henrico County, 216 Va. 764, 766, 222 

S.E.2d 570, 572 (1976). However, the exhaustion of 

administrative remedies doctrine does not apply to 

circumstances in which the challenge to the ordinance could 

not be remedied by a variance or other action of the County. 

Bd. of Super. v. Rowe, 216 Va. 128, 133, 216 S.E.2d 199, 205 

(1975). 

In this case, the Dails do not assert that the Forestry, 

EMA, or WMP Ordinances were invalid or unreasonable as applied 

to their property.2 Rather, the Dails contend that the 

Ordinances were invalid as applied to any property satisfying 

the criteria of Code § 10.1-1126.1 because the Ordinances 

conflicted with, and were preempted by, Code § 10.1-1126.1. 

Considering the Ordinances as invalid local legislation, and 

ultra vires acts, the Dails assert that they were not required 

 2

 The trial court held that the Dails conceded that the 

ordinances were not unreasonable as applied to their property 

and this holding was not the subject of an assignment of 

error. 

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to comply with the provisions of the county zoning ordinance 

in question. 

The Dails' challenge requires a determination whether the 

challenged ordinances are valid exercises of the County's 

zoning authority. Neither the zoning administrator nor the 

board of zoning appeals has the authority to determine the 

validity of a zoning ordinance. Town of Jonesville v. Powell 

Valley Village Limited Partnership, 254 Va. 70, 74, 487 S.E.2d 

207, 210 (1997). Therefore, pursuing administrative remedies 

could not have resolved the issues presented by the Dails, and 

a suit seeking a declaratory judgment was appropriate. 

Accordingly, we conclude that the trial court erred in 

dismissing the amended bill of complaint for failure to 

exhaust administrative remedies. 

II. Validity of Ordinances 

 We now turn to the various challenges the Dails make 

regarding the validity of certain portions of the York County 

zoning ordinance. Subsection A of Code § 10.1-1126.1 states 

that it is a "beneficial and desirable use" of the forest 

resources of this Commonwealth to practice forestry "in 

accordance" with the best management practices promulgated by 

the State Forester. Subsection B of that section places 

limitations on the regulations localities can impose on 

silvicultural activity conducted on property such as the 

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Dails.3 The limitations placed on the localities are that the 

ordinances (1) may not prohibit or unreasonably limit such 

silvicultural activity, (2) may not impose a permit or fee 

requirement to engage in such activity, (3) must be 

"reasonable and necessary to protect the health, safety and 

welfare" of the localities' residents, and (4) may not 

"conflict with the purposes of promoting the growth, 

continuation and beneficial use of the Commonwealth's 

privately owned forest resources." Code § 10.1-1126.1(B). 

The Dails assert that a number of the provisions in the 

Forestry, EMA, and WMP Ordinances are invalid because they are 

preempted by state law or are inconsistent with state law. 

Specifically, the Dails assert that the requirement imposed by 

the Forestry Ordinance that the zoning administrator approve a 

forest management plan before engaging in silvicultural 

activities and the provisions in the EMA Ordinance regarding 

clear cutting of timber are preempted and invalid because they 

directly contravene Code § 10.1-1126.1(B). The Dails also 

contend that even if the provisions regarding clear cutting 

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 Subsection B of Code § 10.1-1126.1 applies to 

silvicultural activity (1) conducted in a manner which 

complies with the best management practices promulgated by the 

State Forester and (2) located on property defined as real 

estate devoted to forestry use under § 58.1-3230 or in a 

district established pursuant to Chapter 43 or 44 of Title 

15.2. There is no dispute that the Dails' property meets 

these criteria. 

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are not preempted, they, along with other provisions of the 

Ordinances regarding buffer zones, nevertheless are invalid 

because they violate state law established for the regulation 

of forestry and the protection of water quality in the 

Commonwealth. 

A. Permit Requirement 

The Dails assert that the requirement in the Forestry 

Ordinance that a forest management plan be approved by the 

zoning administrator is in effect a permit requirement and, 

therefore, conflicts with the provision of Code § 10.1-

1126.1(B) prohibiting localities from imposing "permits." We 

disagree with the Dails' interpretation of the statute because 

it is not supported by the language in the statute and it 

relegates the submission and review process allowed by the 

statute to one of mere notice filing. 

Code § 10.1-1126.1(B) authorizes a county zoning 

administrator to review proposed silvicultural activity to 

determine whether it "complies with applicable local zoning 

requirements." Allowing proposed activity to be reviewed for 

compliance implies that the review process encompasses more 

than simply a review of a proposed plan of activity. The 

statutory review process includes a component of evaluation 

and decision regarding compliance. Describing this decision 

as an "approval" in the Forestry Ordinance is consistent with 

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authorizing the zoning administrator to make such a 

determination regarding compliance, and does not create a 

permit requirement. 

The Dails further argue that the compliance review is 

limited to determining whether the forestry plan complies with 

other zoning ordinances relating to non-silvicultural 

activities, such as noise abatement ordinances. However, 

there is nothing in the statute that suggests such a limited 

interpretation, and nothing in the statute suggests that the 

County cannot enact ordinances affecting silvicultural 

activity. 

Therefore, we conclude that the provisions of the 

Forestry Ordinance requiring submission and approval of a 

forest management plan by the zoning administrator do not 

impose a permit requirement for silvicultural activities and 

therefore do not contravene, and are not preempted, by Code 

§ 10.1-1126.1(B). 

B. Clear Cutting of Timber 

 The Dails next turn to the aspects of Code § 10.1-

1126.1(B) which forbid the enactment of local ordinances that 

prohibit silvicultural activity. The Dails maintain that a 

portion of the EMA Ordinance, § 24.1-372(e)(5), prohibits 

clear cutting of timber and, therefore, is invalid. However, 

reading the provision challenged by the Dails in its entirety 

9
shows that it is not an absolute prohibition on clear cutting 

of timber in areas subject to the EMA Ordinance. 

The portion of the EMA Ordinance challenged by the Dails 

states that, in those areas subject to the Ordinance: 

Clear cutting of trees shall not be permitted. 

However, the zoning administrator may permit 

selected thinning based upon best management 

practices and in accordance with an approved 

plan. 

§ 24.1-372(e)(5), York County Code. We do not interpret this 

language as prohibiting silvicultural activity. This provision 

is a limitation on clear cutting, which can be altered by the 

zoning administrator. Therefore, this provision does not 

contravene, and is not preempted by, Code § 10.1-1126.1(B).4

C. Buffer Requirements 

Finally, relying on Code §§ 1-13.17, 15.2-1200, and 15.2-

2283, the Dails contend that, even if the provision regarding 

clear cutting is not preempted, it, along with other 

provisions establishing buffer zones, are invalid because they 

conflict with, or are inconsistent with, state law. 

The Dails assert that the statutory scheme for regulating 

silvicultural activity includes delegating to the State 

 4

 In their reply brief, the Dails also characterize 

subsection (e)(2) of the WMP Ordinance and subsections (f) and 

(g) of the Forestry Ordinance as amounting to a prohibition on 

harvesting timber. Those sections, however, also allow the 

zoning administrator to modify the extent of the buffer zones 

imposed by those subsections and allow harvesting of timber. 

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Forester the development of best management practices, Code 

§ 10.1-1105, and placing the sole authority to enforce and 

implement the laws pertaining to forest and woodlands in the 

State Forester, Code §§ 10.1-1181.2 and 10.1-1181.3. Citing 

Klingbeil Management Group Co. v. Vito, 233 Va. 445, 357 

S.E.2d 200 (1987), the Dails conclude that the provisions of 

the Ordinances establishing buffer requirements are invalid 

because they address these matters of silviculture activity in 

a manner that conflicts with the provisions of the best 

management practices promulgated by the State Forester. 

This conflict, however, does not render the Ordinance 

provisions void. A local ordinance may be invalid because it 

conflicts with a state regulation if the state regulation has 

"the force and effect of law." Loudoun County v. Pumphrey, 

221 Va. 205, 206-07, 269 S.E.2d 361, 362-63 (1980). The 

Dails' argument fails because the best management practices 

promulgated by the State Forester do not have the force and 

effect of law. 

The best management practices are only guidelines for use 

in forestry activities. Moreover, the State Forester's 

enforcement authority extends to the issuance of special 

orders for silvicultural activity which is causing or is 

likely to cause "pollution" or "an alteration of the physical, 

chemical or biological properties of any state waters 

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resulting from sediment deposition presenting an imminent and 

substantial danger" to the public health, water supply, or 

other endeavors such as recreation or commerce. Code § 10.1-

1181.2(B), (C). The State Forester cannot issue special 

orders solely for the violation of a best management practice.5 

Therefore, the provisions of the Ordinances establishing 

buffer zones are not invalid based on a conflict with the 

buffer zones suggested by the best management practices 

because the best management practices do not have the force 

and effect of law. 

The Dails make a similar argument regarding the validity 

of provisions of the Ordinances which regulate silvicultural 

activity for the purposes of maintaining water quality. The 

Dails say that the State Water Control Board is the sole 

agency authorized to administer the state's water control law 

and to establish standards for protection of state waters. 

The Dails argue that the State Water Control Board has 

recognized the best management practices for non-point 

pollutant sources such as forestry as practices "to be the 

most effective, practicable means of preventing or reducing 

the amount of non-point source pollutants entering a water 

 5

 There are certain federally promulgated best management 

practices which are mandatory. However, they do not involve 

the matters addressed in the Ordinances at issue in this case 

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course." 9 VAC 25-560-120. These practices, therefore, 

according to the Dails, are standards "promulgated as part of 

an overall scheme designed to regulate and foster the State's 

forestry industry" and to the extent the Forestry, EMA, and 

WMP Ordinances exceed these standards, they are invalid. 

 As we have just said, the best management practices are 

merely guidelines and do not have the force of state law. 

State Water Control Board recognition of these guidelines as 

preferred methods for maintaining clean water does not 

transform them into enforceable regulations. Therefore, 

provisions in the challenged Ordinances which conflict with 

the best management practices are not invalid on the basis 

that they conflict with state law governing water quality. 

 Finally, we note that in their reply brief, the Dails 

argue that the limitations placed on a locality's general 

police powers and zoning authority by Code § 10.1-1126.1(B) 

reflect an intent by the General Assembly to "change the 

status quo," and to impose "the burden upon localities" if 

they enact requirements that exceed the best management 

practices "to show that the State regulations are inadequate 

to protect the health, safety and welfare of their citizens 

 

and, in no event, would be relevant to the Dails' challenge 

based on preemption or conflict with state law. 

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and that local regulation is necessary to meet identified 

shortcomings in the State program." 

We reject this invitation to abandon the presumption of 

validity afforded a local government ordinance and to adopt 

the burden shifting scheme proposed by the Dails. We find the 

suggestion particularly inappropriate in this case because the 

Ordinances at issue address conditions contained in 

guidelines, not in state statutes or regulations, and because 

many of the challenged requirements of those Ordinances may be 

altered by the zoning administrator. Furthermore, to the 

extent that this argument addresses the requirement of Code 

§ 10.1-1126.1(B) that a locality's ordinance regulating 

silvicultural activity be "reasonable and necessary to protect 

the health, safety and welfare" of the locality's residents, 

we will not consider the argument because the Dails did not 

assign error to the trial court's conclusion that the 

ordinances "are reasonable and necessary, and serve to protect 

the health, safety and welfare of the public." 

 For the above reasons, we will reverse that portion of 

the trial court's judgment concluding that the Dails were 

required to exhaust their administrative remedies, and affirm 

that portion of the judgment concluding that the challenged 

provisions of the York County zoning ordinance are valid. 

 Reversed in part,

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 affirmed in part,

and final judgment.

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