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

JJ., and Carrico and Russell, S.JJ. 

BOARD OF SUPERVISORS 

OF LOUDOUN COUNTY, ET AL. 

v. Record No. 071424 OPINION BY JUSTICE DONALD W. LEMONS 

 September 12, 2008 

TOWN OF PURCELLVILLE 

COUNTY OF LOUDOUN 

v. Record No. 071425 

TOWN OF PURCELLVILLE 

BOARD OF SUPERVISORS 

OF LOUDOUN COUNTY, ET AL. 

v. Record No. 071426 

TOWN OF PURCELLVILLE 

TOWN OF PURCELLVILLE 

v. Record No. 071505 

BOARD OF SUPERVISORS 

OF LOUDOUN COUNTY, ET AL. 

MARTHA MASON SEMMES, 

DIRECTOR OF PLANNING 

AND ZONING FOR THE 

TOWN OF PURCELLVILLE 

v. Record No. 071506 

TOWN OF PURCELLVILLE 

BOARD OF ZONING APPEALS, ET AL. 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 
 In these consolidated appeals1 we consider various issues 

involving a dispute between the Town of Purcellville (“Town”) 

and Loudoun County (“County”) regarding the interpretation of 

an annexation agreement dated November 16, 1994 (the 

“Annexation Agreement”) and a joint comprehensive plan known 

as the “Purcellville Urban Growth Area Management Plan” (the 

“PUGAMP”). 

I. FACTS AND PROCEEDINGS 

In 1994, the Town and the County entered into an 

Annexation Agreement defining the Town’s future rights in the 

3,100-acre “Urban Growth Area” (“UGA”)2 surrounding the Town’s 

corporate limits. Under the Annexation Agreement, the Town 

received the right to annex areas within the UGA in exchange 

for relinquishing its right to seek city status. Although 

both the Town and the County had previously adopted 

comprehensive plans and zoning ordinances governing land use 

within their respective jurisdictions, the Annexation 

Agreement also provided for the development of a joint 

comprehensive plan for the UGA. The plan would address, among 

 1

 These five consolidated appeals are from two related 

judgments of the Circuit Court of Loudoun County. The first 

rendered a declaratory judgment; the second involved appeals 

from the County Board of Zoning Appeals and the Town Board of 

Zoning Appeals. In this opinion, “BZA” will be used for 

convenience in referring to the Boards. 

2

 The UGA is also referred to as the Joint Land Management 

Area or JLMA. 

2
other things, proffer guidelines and allocations, 

transportation networks, schools and other public facilities, 

land uses, density, environmental policies, and phasing. The 

County and the Town agreed that once a joint comprehensive 

plan was adopted, development within the UGA would “be in 

conformance with the Plan.” 

Thereafter, a joint comprehensive plan committee 

comprised of Town and County representatives drafted a plan. 

After formal review by the Town and the County Planning 

Commissions and a revision by Town and County Planning 

Commissioners, both Planning Commissions formally certified 

the final draft. This final draft, known as the PUGAMP, was 

separately adopted by the Town Council and the County Board of 

Supervisors in 1995 and was implemented as an element of both 

the Town’s and the County’s respective comprehensive plans. 

Prior to implementation of the PUGAMP, the Town’s 

comprehensive plan did not address land outside its corporate 

limits. The PUGAMP, however, expanded upon the Town’s 

Comprehensive Plan by accommodating future development in the 

UGA. Although the County’s previously adopted General Plan 

provided guidelines for land use in the UGA, these policies 

were superseded by the policies included in the PUGAMP. The 

County’s Revised General Plan reiterates that development 

within the UGA will comply with the PUGAMP and the County will 

3
work with Town officials on annexation, development, and other 

issues within the UGA. 

Once “a local planning commission recommends a 

comprehensive plan” and it is “approved and adopted by the 

governing body,” the plan controls “the general or approximate 

location, character and extent of each feature shown on the 

plan.” Code § 15.2-2232(A). If a proposed development is not 

already a feature shown on the plan, then the proposal must be 

“submitted to and approved by the commission as being 

substantially in accord with the adopted comprehensive plan.” 

Id. Both the Town and the County refer to the approval of a 

proposed development not shown on their comprehensive plans as 

a “commission permit,” and both localities have established 

within their respective zoning ordinances a commission permit 

procedure consistent with the language of Code § 15.2-2232. 

The PUGAMP’s “Existing and Proposed School Locations” map 

identifies the “preferred location” for four new schools 

within the UGA: an elementary school designated by an “E” 

located southeast of the Town, another elementary school 

designated by an “E” located northwest of the Town, a middle 

school designated by an “M” located north of the Town, and a 

high school designated by an “H” located northeast of the 

Town. Although subdivisions were subsequently developed in 

the areas designated for the proposed middle school and the 

4
proposed high school, the need for new school sites remained. 

Partly to address this need, in 2000 the County purchased a 

230-acre tract of land lying northwest of the Town known as 

Fields Farm. Excepting 2.6 acres, Fields Farm is located 

entirely within the UGA. An elementary school was constructed 

on this property in the area previously designated for such 

use by the PUGAMP. 

A. The Declaratory Judgment Action 

On May 15, 2006, the County School Board requested a 

“pre-application conference” with the County Planning 

Department to discuss the construction of a high school (“HS3”) at Fields Farm. Among other things, the School Board 

sought to confirm that a commission permit was not needed 

prior to HS-3’s development. At the pre-application 

conference, held on May 24, 2006, the County Planning 

Department indicated that no commission permit was necessary 

for the Fields Farm proposal. However, this matter was deemed 

an “open issue to follow up on,” because the Town contended 

that a commission permit was required. On June 1, 2006, the 

County Board of Supervisors met with the School Board to 

discuss HS-3. At the meeting, Julie Pastor (“Pastor”), the 

County’s Planning Director, stated that a commission permit 

was not required for the proposed high school, subject to a 

5
determination by the County Zoning Administrator.3 On June 19, 

2006, the Town appealed the County’s determination that no 

commission permits were necessary for HS-3’s development to 

the County BZA. On the following day, the Board of 

Supervisors authorized the County to seek a special use 

exception for construction of HS-3 at Fields Farm. 

On June 21, 2006, the Town filed a Complaint and 

Application for Declaratory and Temporary Injunctive Relief in 

the Circuit Court of Loudoun County “as a result of the 

County’s ultra vires and illegal action.” The Town alleged 

that “the County [had] completely ignored the Town’s rights to 

be involved with, review and approve new development in the 

UGA as outlined by the PUGAMP, the Annexation Agreement, and 

Code §§ 15.2-2233 and –2232,” and further, that “the County’s 

continuation of the land development process violate[d] the 

procedural requirements of the . . . Annexation Agreement and 

the [PUGAMP as well as] the statutory stay of action imposed 

as a result of” the Town’s June 19 appeal to the County BZA. 

 3

 In a March 8, 1999 memorandum, the County Zoning 

Administrator, Melinda Artman, designated the Chief of 

Comprehensive Planning as her agent in the determination of 

whether a use requires a Commission Permit. Artman reiterated 

her designation of authority in this respect at a hearing 

before the County BZA held on September 28, 2006, stating, “I 

delegated my authority for determining whether a commission 

permit is required to the . . . Chief of Comprehensive 

Planning,” whom she also referred to as “the Director of 

Planning.” 

6
The Town sought a declaration that “the Town’s appeal was 

properly filed and . . . pending before the [County] BZA;” 

that the County’s “participation . . . in the [s]pecial 

[e]xception process and authorization to proceed with the 

. . . development” of HS-3 at Fields Farm was “in furtherance 

of the matters appealed from by the Town” and “violate[d] the 

stay imposed . . . as a result of the Town’s [a]ppeal;” and 

that no other proceedings related to HS-3 take place until the 

Town’s appeal concluded. The Town also requested “such other 

and further relief as may be required to ensure the County’s 

strict compliance with the governing law.” 

On the following day, Melinda Artman (“Artman”), the 

County Zoning Administrator, notified the Town by letter that 

its June 19 appeal to the County BZA was not accepted because 

the appeal was premature. Artman reasoned that the record of 

the pre-application conference specifically provided that no 

matters discussed would be binding on either the applicant or 

the County, and that no determination was made with regard to 

the commission permit by anyone acting on Artman’s behalf at 

the pre-application conference. Artman stated, however, that 

based upon the pre-application conference she had been asked 

to render a determination on whether a commission permit was 

required, and a copy of her determination was enclosed. In 

7
her letter, Artman communicated her decision that no 

commission permit was necessary for the construction of HS-3. 

The County subsequently filed a demurrer and an answer 

denying the merits of the Town’s claims. The County filed a 

plea in bar and a motion to dismiss thereafter, asserting the 

circuit court lacked jurisdiction to consider the Town’s 

claims. The circuit court held a hearing on the matter on 

March 8, 2007, wherein the County contended that the case was 

moot because the Town’s complaint sought relief specifically 

related to its June 19 appeal to the County BZA, which had 

been dismissed as premature, and further, that a declaratory 

judgment was not “an appropriate method of seeking relief.” 

The Town responded that the claim was not moot because 

the fundamental issue, based on both the May 24 preapplication conference and on Pastor’s June 1 statement to the 

Board of Supervisors, concerned the County’s ability to 

proceed with HS-3’s construction in disregard of the Town’s 

claim that it had the authority to review any proposed 

development within the UGA under the PUGAMP, the Annexation 

Agreement, and the Code. 

The circuit court refused to dismiss the case, stating, 

“first, that the public interest exception would apply,” and 

second, that the Town’s request for “such other and further 

relief as may be required to ensure the County’s strict 

8
compliance with the governing law” was “sufficient when read 

in context with all the other remaining allegations in the 

pleading to put the case before the [c]ourt properly for 

declaratory judgment . . . with respect to the issuance of [a] 

commission permit.” 

On March 13, 2007, the circuit court rendered its opinion 

on the declaratory judgment. The circuit court ruled that the 

Annexation Agreement and the PUGAMP created a “joint 

comprehensive plan” entered into by the County and the Town 

pursuant to Code § 15.2-2231, and that through this agreement 

the County had “consented to the extension of the Town’s 

comprehensive planning authority into the [UGA].” Continuing, 

the circuit court determined that it “was unnecessary for the 

parties to address the commission permit review process . . . 

because the right to review was inherent in the right to 

participate in the planning process.” As a result, the 

circuit court declared that “the Town and [the] County have 

joint and concurrent authority to review and approve the 

location of public facilities within the [UGA]” under Code 

§ 15.2-2232. The circuit court entered a final order on April 

18, 2007, wherein it incorporated its March 13 letter opinion 

and further ruled that “the County’s authority to undertake 

commission permit reviews for public facilities within the 

9
[UGA] ceases when a property is annexed into the corporate 

limits of the Town.” 

B. The BZA Appeals 

While the Town’s declaratory judgment action was pending, 

the County BZA and the Town BZA rendered three related 

decisions4 concerning authority over new development within the 

UGA. These decisions were appealed to the Circuit Court of 

Loudoun County, which rendered a single opinion on the matters 

within one week of the declaratory judgment. 

1. Semmes’ Appeal from the Town BZA 

On May 24, 2006, Martha Semmes (“Semmes”), the Town’s 

Director of Planning and Zoning, informed the County that 

pursuant to the PUGAMP, both localities would have to apply 

for a commission permit for HS-3 because it was not a “feature 

shown” on the plan. The School Board and the Board of 

Supervisors subsequently appealed Semmes’ determinations to 

the Town BZA. Following a hearing, the Town BZA determined 

that it did not have jurisdiction to consider an appeal 

arising from matters in controversy outside of the Town’s 

corporate limits. 

Semmes filed a petition for a writ of certiorari in the 

circuit court pursuant to Code § 15.2-2314, seeking review of 

 4

 One decision involved the consolidation of two matters 

making a total of four separate BZA cases. 

10
the Town BZA’s decision. Specifically, Semmes contended that 

the PUGAMP had been implemented as part of the Town’s 

comprehensive plan and, pursuant to Code § 15.2-2232 as 

incorporated into the Town’s Zoning Ordinance, she had the 

authority as the Town Zoning Administrator to determine 

“whether a proposed public use [within the UGA] is a feature 

shown on the adopted comprehensive plan.” Semmes asserted 

that the Town Zoning Ordinance gives the Town BZA the 

authority to decide appeals “where an error is alleged in any 

. . . determination made by an administrative official in the 

administration or enforcement of [the Town Zoning] Ordinance,” 

and therefore, the Town BZA erred in determining that it 

lacked jurisdiction to hear the appeal. 

2. The Town’s First Appeal from the County BZA 

Artman’s June 22, 2006 letter denying the Town’s June 19 

appeal to the County BZA also contained the following 

determinations: 

1. Development of Fields Farm is exclusively governed 

by the Loudoun County Zoning Ordinance and only the 

County Zoning Administrator may make binding 

determinations regarding the applicable zoning 

regulations. 

2. No Town official “is authorized to make any . . . 

determination . . . concerning property in the 

unincorporated portion of the County, 

[s]pecifically, no Town official has authority to 

make determinations regarding [c]ommission [p]ermit 

requirements incorporated as part of the [Loudoun 

County Zoning Ordinance]. 

11
3. Even where a commission permit may be required for a 

school facility within the UGA, no commission permit 

is required from the Town under the Loudoun County 

Zoning Ordinance. 

4. HS-3’s development does not require a commission 

permit in any event because the location of a public 

high school at Fields Farm is a feature shown on the 

PUGAMP. 

The Town appealed these determinations to the County BZA. 

The County BZA held a public hearing on the matter, but 

limited its review of the Town’s arguments to the extent they 

related to the Loudoun County Zoning Ordinance, determining 

that its authority was “restricted to . . . the interpretation 

of zoning.” The County BZA subsequently denied the Town’s 

appeal and upheld Artman’s June 22 determinations. 

The Town filed a petition for a writ of certiorari in the 

circuit court pursuant to Code § 15.2-2314, seeking review of 

the County BZA’s decision. Specifically, the Town contended 

that the County BZA incorrectly concluded that only the County 

Zoning Administrator and the Loudoun County Zoning Ordinance 

control determinations regarding the issuance of commission 

permits for public uses in the UGA; that the PUGAMP requires 

the Town engage in consistency determinations of proposed 

public uses in the UGA; that HS-3 is not a feature shown on 

the PUGAMP; and that, consequently, “the commission permit 

process mandated by Code § 15.2-2232 and the Town and County 

Zoning Ordinances must be followed.” The Board of Supervisors 

12
and the School Board filed an answer as intervening 

defendants, asserting the Town did not have the authority to 

make decisions concerning new development within the UGA. 

3. The Town’s Second Appeal from the County BZA 

On June 23, 2006, Semmes sent a letter to the School 

Board regarding the proposed construction of an elementary 

school within the UGA. Semmes stated that both the County and 

the Town Planning Commissions would have to approve the site 

by commission permit before development could proceed. Artman 

responded on June 30, 2006 by letter, in which she stated that 

no Town official is authorized to make such determinations. 

Artman reasoned that, as a result, Semmes’ June 23 letter was 

“null and void ab initio.” 

The Town appealed Artman’s June 30 determinations to the 

County BZA. The County BZA held a public hearing on the 

matter, wherein it again indicated that it could “simply make 

determinations with regard to County zoning.” Whether the 

Town could engage in the review of new development within the 

UGA under the PUGAMP, which “is not a zoning instrument,” was 

deemed outside of the County BZA’s jurisdiction. 

Consequently, the County BZA denied the Town’s appeal and 

upheld Artman’s determinations. 

The Town filed a petition for a writ of certiorari in the 

circuit court pursuant to Code § 15.2-2314, seeking review of 

13
the County BZA’s decision. Specifically, the Town contended 

that the PUGAMP is the relevant comprehensive plan governing 

proposed uses within the UGA; that the commission permit 

process contained in the Town Zoning Ordinance required the 

Town to review new development within the UGA; that Code 

§ 15.2-2286(4), as well as the Town Zoning Ordinance, specify 

that a locality’s zoning administrator shall have all 

necessary authority on behalf of the Town; and that, 

consequently, whether the elementary school “is a feature 

shown on the PUGAMP was a necessary preliminary determination 

properly made by [Semmes] on behalf of the Town in the 

administration and enforcement of . . . the Town Zoning 

Ordinance, as well as in the implementation of the 

requirements of Code § 15.2-2232.” The Board of Supervisors 

and the School Board filed an answer as intervening 

defendants, asserting the Town did not have the authority to 

make decisions concerning new development within the UGA. 

4. The Circuit Court’s Decision regarding BZA Appeals 

The three BZA appeals were consolidated for one hearing 

before the circuit court, and on March 19, 2007, the circuit 

court rendered its decision by a single letter opinion. 

First, with respect to Semmes’ appeal, the circuit court found 

that no authority exists within “the Annexation Agreement or 

state statute” pursuant to which the Town BZA could render 

14
decisions affecting property located outside the Town’s 

corporate limits. Second, the circuit court affirmed the 

County BZA’s decision upholding Artman’s determination that 

Semmes lacked authority “to make commission permit 

determinations respecting properties outside the corporate 

limits of the Town” because “no such power exists.” Third, 

the circuit court held that the County BZA’s decision that 

commission permit review was not required before proceeding 

with HS-3’s development was “not erroneous” because it is 

“indisputable” that HS-3 is a feature shown on the PUGAMP. 

Fourth, the circuit court reversed the County BZA’s decision 

upholding Artman’s determinations “respecting the right of the 

Town to participate in the compliance review process with the 

County outside the corporate limits of the Town but within 

[the] PUGAMP” because the decision was inconsistent with the 

circuit court’s March 13 opinion declaring that the Town and 

the County have joint and concurrent authority to review and 

approve the location of public facilities within the UGA. The 

circuit court affirmed the decision only “[t]o the extent that 

the [County BZA] rejected any claim by the Town that it might 

exercise zoning jurisdiction within the PUGAMP but outside the 

limits of the Town.” The circuit court entered final orders 

on the three appeals on April 18, 2007, for the reasons stated 

in its March 13 and March 19 letter opinions. 

15
II. ANALYSIS 

Both the County and the Town present several assignments 

of error that challenge the circuit court’s interpretation of 

the PUGAMP and its subsequent rulings. Specifically, the 

County argues the circuit court erred in declaring that the 

Town has joint and concurrent authority to review and approve 

the location of new development within the UGA, and in holding 

that the County’s authority to engage in the review process 

ends once unincorporated property is annexed by the Town. The 

County also assigns error to the circuit court’s refusal to 

dismiss the Town’s declaratory judgment action for lack of 

jurisdiction. 

The Town contends that the circuit court erred in 

determining in the BZA appeals that neither the Town nor 

Semmes have the authority to engage in consistency review 

within the unincorporated portion of the County, and that HS-3 

is a feature shown on the PUGAMP. Since the denial of the 

County’s plea in bar and motion to dismiss present threshold 

issues, we will consider them first. 

A. Plea in Bar and Motion to Dismiss 

1. Mootness 

According to the County, a fair reading of the Town’s 

initial complaint reveals that the entire case was premised 

upon an appeal to the BZA that was premature. Therefore, the 

16
County maintains, the matter before the BZA was moot and there 

was no jurisdictional basis upon which the trial court could 

entertain the Town’s requested declaratory judgment and 

temporary injunctive relief. Additionally, the County asserts 

that the Town’s general prayer of “such other further relief 

as may be required” was an insufficient basis for the circuit 

court’s exercise of jurisdiction notwithstanding the lack of 

an underlying BZA appeal. 

In response, the Town argues the case was not moot 

because the denial of the Town’s initial BZA appeal did not 

resolve the underlying issues in the case. “The intent of the 

[Declaratory Judgment Act] is to have courts render 

declaratory judgments which may guide parties in their future 

conduct in relation to each other, thereby relieving them from 

the risk of taking undirected action incident to their rights, 

which action, without direction, would jeopardize their 

interests.” Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 

421, 177 S.E.2d 519, 524 (1970). The Act “is to be liberally 

interpreted and administered with a view to making the courts 

more serviceable to the people,” Code § 8.01-191, but courts 

may only issue declaratory judgments “in cases of actual 

controversy when there is antagonistic assertion and denial of 

right.” Treacy v. Smithfield Foods, Inc., 256 Va. 97, 103, 

500 S.E.2d 503, 506 (1998) (quotation marks and citations 

17
omitted). “Thus, the Declaratory Judgment Act does not give 

trial courts the authority to render advisory opinions, decide 

moot questions, or answer inquiries that are merely 

speculative.” Id. at 104, 500 S.E.2d at 506 (citations 

omitted). 

 By its terms, the PUGAMP is a comprehensive plan adopted 

by the County and the Town governing development within the 

UGA. However, the County’s Planning Department and Planning 

Director maintained that HS-3’s development would not require 

Town approval, and the Board of Supervisors subsequently 

authorized the County to seek a special use exception so that 

HS-3’s development could proceed. Conversely, the Town 

consistently asserted that it had an equal right to determine 

whether the proposed school site was consistent with the 

PUGAMP. 

Clearly, a justiciable controversy existed between the 

County and the Town as to their rights under the terms of 

their joint agreement. See Criterion Ins. Co. v. Grange Mut. 

Cas. Co., 210 Va. 446, 449, 171 S.E.2d 669, 671 (1970) (“When 

a justiciable controversy exists between two insurance 

companies as to their obligations under the terms of their 

respective policies, a declaratory judgment proceeding may be 

maintained by one of the companies against the other”). The 

fact that the County BZA denied the Town’s initial appeal as 

18
premature does not indicate that an actual case or controversy 

within the contemplation of the Declaratory Judgment Act did 

not exist. See Tazewell Cty. Sch. Bd. v. Brown, 267 Va. 150, 

157-58, 591 S.E.2d 671, 674 (2004) (neither reinstatement nor 

resignation of school administrator mooted his claim of 

unfounded information in his personnel file). 

Furthermore, the Town alleged in plain and explicit 

language that the County’s actions violated the Annexation 

Agreement, the PUGAMP, the localities’ zoning ordinances, and 

Code §§ 15.2-2223 and –2232, and the Town fully set forth its 

supporting reasoning in its complaint. The Town’s request 

that the County be “required to . . . comply with the 

governing law” was therefore sufficient to allow the circuit 

court to determine whether the County could proceed with HS3’s development within the UGA without the Town’s approval by 

adjudicating the localities’ respective rights under the 

PUGAMP. 

2. Appropriateness of Declaratory Relief 

The County also contends that a declaratory judgment was 

not the “proper vehicle for providing relief” because “the 

County had already acted and, therefore, the Town’s rights, if 

any, had already accrued.” We disagree. The Town sought a 

declaration of its rights under its written agreements with 

the County and the dispute presented would not be resolved 

19
upon a dispositive factual question. Therefore, declaratory 

judgment was a proper vehicle for relief. 

Although “this [C]ourt and lower courts have . . . given 

a liberal interpretation to the Declaratory Judgment Act, they 

have nevertheless recognized that the power to make a 

declaratory judgment . . . will not as a rule [be] exercised 

where some other mode of proceeding is provided.” Bishop, 211 

Va. at 421, 177 S.E.2d at 524. “Where a declaratory judgment 

as to a disputed fact would be determinative of issues, rather 

than a construction of definite stated rights, status, and 

other relations, commonly expressed in written instruments, 

the case is not one for declaratory judgment.” Williams v. 

Southern Bank of Norfolk, 203 Va. 657, 663, 125 S.E.2d 803, 

807 (1962) (quoting 16 Am. Jur., Declaratory Judgments, § 20 

at 294-95). 

For example, in USAA Casualty Insurance Co. v. Randolph, 

255 Va. 342, 344-45, 497 S.E.2d 744, 745 (1998), an employee 

filed a declaratory judgment action to determine whether the 

Virginia Workers’ Compensation Act would bar him from 

instituting a tort action for injuries sustained while he was 

at his place of employment. We held that declaratory judgment 

was inappropriate “because the case [did] not involve a 

determination of rights, but only involve[d] a disputed issue 

to be determined in future litigation between the parties, 

20
namely, whether [the employee’s] injuries arose out of and in 

the course of his employment.” Id. at 347, 497 S.E.2d at 747. 

Similarly, in Green v. Goodman-Gable-Gould Co., Inc., 268 

Va. 102, 108, 597 S.E.2d 77, 81 (2004), Goodman-Gable-Gould 

filed a declaratory judgment action to “determine whether it 

had substantially performed its obligations under [its] 

contract with [Green]” when Green requested Goodman-GableGould withdraw from adjusting Green’s fire loss claim. 268 

Va. at 108, 597 S.E.2d at 81. We held declaratory relief was 

inappropriate because Goodman-Gable-Gould’s “actual objective 

in the . . . proceeding was a determination of that disputed 

issue rather than an adjudication of the parties’ rights,” an 

issue which “should have been litigated in the context of a 

breach of contract claim.” Id.

In contrast, rather than a determination of a disputed 

factual issue, the Town sought a declaration of its rights 

under its written agreements with the County. Therefore, this 

was “a classic case where declaratory judgment [was] 

appropriate to ‘guide parties in their future conduct in 

relation to each other.’ ” Reisen v. Aetna Life and Cas. Co., 

225 Va. 327, 335, 302 S.E.2d 529, 533 (1983) (quoting Bishop, 

211 Va. at 421, 177 S.E.2d at 524). The trial court did not 

err by deciding the question. 

B. The Trial Court’s Judgment 

21
The trial court held that: 

 Being a joint plan, both the County and 

Town, are initiators of the Plan. The 

Annexation Agreement provides that the planning 

commissions of both jurisdictions would 

participate in the review of the document 

prepared by the unique Joint Comprehensive Plan 

Committee provided for in the Agreement. It 

was unnecessary for the parties to address the 

commission permit review process in the 

Annexation agreement or PUGAMP, because the 

right to review was inherent in the right to 

participate in the planning process. 

For several reasons, we disagree. 

 In City of Richmond v. Board of Supervisors, 199 Va. 679, 

684, 101 S.E.2d 641, 645 (1958), we stated the general 

“Dillon’s rule” as follows: 

It is a general and undisputed proposition 

of law that a municipal corporation possesses 

and can exercise the following powers and no 

others: First, those granted in express words; 

second, those necessarily or fairly implied in 

or incidental to the powers expressly granted; 

third, those essential to the declared objects 

and purposes of the corporation, not simply 

convenient but indispensable. Any fair, 

reasonable doubt concerning the existence of 

the power is resolved by the courts against the 

corporation and the power is denied. Winchester 

v. Redmond, 93 Va. 711; 25 S.E. 1001, 57 Am. 

St. Rep. 822 [1896]; Wallace v. Richmond, 94 

Va. 204, 26 S.E. 586, 36 L.R.A. 554 [1897]; 

Railway Co. v. Dameron, 95 Va. 545, 28 S.E. 951 

[1898]; Duncan v. City of Lynchburg, 2 Va. Dec. 

700, 34 S.E. 964, 48 L.R.A. 331 [1900]. 

However, we also stated the specific rule to be followed when 

the question is narrowed to consider the scope of a municipal 

corporation’s extraterritorial powers. “A municipal 

22
corporation is a mere local agency of the State and has no 

powers beyond the corporate limits except such as are clearly 

and unmistakably delegated by the legislature.” Id. In this 

instance, there is no clear and unmistakable delegation of 

concurrent power of the Town to engage in zoning 

determinations in the unincorporated portion of the County. 

Section 15.2-2232 and any reviews provided therein pertain to 

the planning function and not zoning. 

 Code § 15.2-2232(A) provides in part: 

Whenever a local planning commission recommends 

a comprehensive plan or part thereof for the 

locality and such plan has been approved and 

adopted by the governing body, it shall control 

the general or approximate location, character 

and extent of each feature shown on the plan. 

Thereafter, unless a feature is already shown 

on the adopted master plan or part thereof 

. . . no . . . public building or public 

structure . . . shall be constructed, 

established or authorized, unless and until the 

general location or approximate location, 

character, and extent thereof has been 

submitted to and approved by the commission as 

being substantially in accord with the adopted 

comprehensive plan or part thereof. 

The “commission” referred to in Code § 15.2-2232 is the local 

planning commission referenced in Code § 15.2-2223: “The 

local planning commission shall prepare and recommend a 

comprehensive plan for the physical development of the 

territory within its jurisdiction.” (Emphasis added). While 

the Town and the County jointly engage in planning, zoning 

23
determinations within the unincorporated territory of the UGA 

remain under the exclusive authority of the County. The Town 

may participate in the process; however, zoning authority is 

left with the commission where the territory is located – in 

this case, in the County. 

 The trial court also held that once previously 

unincorporated territory in the UGA is annexed by the Town, it 

is no longer subject to commission permit review by the 

County. This partial holding by the trial court is correct 

and recognizes the “mirror image” of the County’s zoning 

authority for territory in its jurisdiction. Each governmental 

entity retains zoning authority for territory in its 

jurisdiction. If the land encompassed by the PUGAMP remains 

in the County, it is the County that retains the power to 

decide. If the land in the PUGAMP is annexed by the Town, it 

is no longer in the County and it is the Town that has the 

power to decide. 

 Accordingly, the trial court erred in holding that “the 

right to review was inherent in the right to participate in 

the planning process.” The planning process is distinct from 

zoning determinations. Pursuant to Code § 15.2-2232 and -

2223, zoning authority remains exclusively with the commission 

that has “the territory within its jurisdiction.” 

C. The BZA Appeals 

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 The various BZA cases took convoluted paths to the trial 

court upon certiorari from decisions of the County BZA and the 

Town BZA. The County asserts that the Town and the County 

agreed that the appropriate standard of review by the trial 

court is to uphold the BZA’s disposition unless it is “plainly 

wrong or without evidence to support” the decision. The Town 

disagrees. The record does reveal some discussion between 

counsel regarding the appropriate standard of review upon 

certiorari to the circuit court. Assuming without deciding 

that the parties had an agreement regarding this matter, the 

trial court utilized the standard of review contained in Code 

§ 15.2-2314, giving deference to findings of fact incidental 

to BZA review of decisions of the zoning administrator. Under 

this standard, “the findings and conclusions of the [BZA] on 

questions of fact shall be presumed to be correct. The 

appealing party may rebut that presumption by proving by a 

preponderance of the evidence . . . that the [BZA] erred in 

its decision.” Code § 15.2-2314. Conclusions of law reached 

by the BZA are not afforded the same presumption of 

correctness. See id. (“The court shall hear any arguments on 

questions of law de novo”). Because the trial court utilized 

the statutory standard of review and the County does not 

assign error to this determination, we will not utilize a 

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different standard purported to have been agreed upon by the 

litigants. 

 Both the Town and the County engaged in BZA review of 

issues relating to the underlying controversy. The Town 

Zoning Administrator determined that a commission permit must 

be obtained from the Town Planning Commission prior to 

locating HS-3 on the property in question because she 

determined that this feature was not depicted on the PUGAMP. 

The County appealed this determination to the Town BZA. The 

Town BZA concluded that it had no authority to make a ruling 

regarding whether the feature was on the PUGAMP, agreeing with 

the County that because the property in question was beyond 

Town corporate limits, the Zoning Administrator did not have 

authority to make such a determination and consequently, the 

Town BZA had no jurisdiction to review the matter. 

On appeal, the trial court affirmed the Town BZA’s 

decision that it did not have such authority. For the reasons 

previously stated herein concerning the declaratory judgment 

action, the trial court’s holding was correct. The Town does 

not have extra-territorial jurisdiction concerning zoning 

decisions in the unincorporated area of the County that 

constitutes the UGA. Nothing in the Code, Annexation 

Agreement or the PUGAMP provides such authority. 

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 The County Zoning Administrator also considered whether a 

commission permit was required to permit the construction of 

HS-3. The County Zoning Administrator made the following 

determinations: 

1. Development of the property is exclusively governed 

by the Loudoun County Zoning Ordinance and only the 

County Zoning Administrator is authorized to make 

binding determinations regarding the applicable 

zoning regulations. 

2. No official from the Town is entitled to make a 

determination that commission permits are required 

for the location of a high school on the property. 

3. A high school for the property is a feature shown on 

PUGAMP, the governing comprehensive plan. 

4. Even if a commission permit is required under the 

County Zoning Ordinance, no concurrence in that 

determination is required from the Town Planning 

Commission. 

The Town appealed these determinations to the County BZA, 

which upheld each of the Zoning Administrator’s decisions. 

 On appeal, the trial court affirmed the BZA’s 

determination that the Zoning Administrator correctly 

determined that HS-3 is a feature shown on the PUGAMP and the 

trial court further held that no commission permit was 

required for the development of HS-3. The trial court reversed 

the remaining decisions of the County BZA declaring that those 

decisions were inconsistent with the trial court’s ruling in 

the declaratory judgment action. 

 Herein we have held that the trial court erred in its 

judgment in the declaratory judgment action. Flowing from 

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that holding, the trial court also erred in reversing the BZA 

decisions 1, 2, and 4 above. As previously stated in the 

portion of this opinion dealing with the declaratory judgment 

action, only the County has zoning authority involving the 

development of HS-3 on the subject property. The Town may 

participate in the process, but the County has zoning 

authority over the commission permit question. 

 With regard to the trial court’s ruling that HS-3 is a 

feature shown on the PUGAMP and that no commission permit is 

required for its development, we disagree. Code § 15.2-2223 

states that a “comprehensive plan shall be general in nature, 

in that it shall designate the general or approximate 

location, character, and extent of each feature . . . shown on 

the plan and shall indicate where existing lands or facilities 

are proposed to be . . . changed in use.” Under Code § 15.2-

2232, unless already shown on the plan, a feature’s “general” 

or “approximate location, character, and extent” must be 

“submitted to and approved by the commission as being 

substantially in accord with the adopted comprehensive plan” 

before being constructed. The trial court determined that HS3 is a feature that is shown on the plan; consequently, 

commission permit review is not required in order to proceed 

with development. 

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 Code § 15.2-2232 anticipates construction of features 

that are not shown anywhere on the comprehensive plan, in this 

case, the PUGAMP. Clearly, if a feature is not even 

mentioned, a commission permit is required to determine 

whether the proposal is “substantially in accord with the 

adopted comprehensive plan.” However, the statute, standing 

alone, does not anticipate a feature being mentioned but later 

proposed to be constructed in a location significantly removed 

from the planning site. 

When engaged in statutory construction, we must harmonize 

statutes as much as possible to give effect to all of their 

provisions. LZM, Inc. v. Virginia Dept. of Taxation, 269 Va. 

105, 111, 606 S.E.2d 797, 800 (2005). The determination 

whether a feature is “already shown on the adopted master 

plan” pursuant to Code § 15.2-2232 must be made in light of 

the requirement that a “general or approximate location” of 

the feature is required in Code § 15.2-2223. The location of 

HS-3 on the PUGAMP is in the northeast corner of the UGA. The 

County’s proposed location for building HS-3 is in the 

northwest corner of the UGA. The UGA is approximately three 

miles wide and the proposed location is two miles from the 

location of the feature on the PUGAMP. Because the proposed 

location is not in accordance with the “general or approximate 

location” requirement for the plan, the proposed location of 

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HS-3 amounts to the functional equivalent of no feature at 

all. Under these circumstances, we hold that the trial court 

erred in determining that the proposed construction of HS-3 is 

a feature shown on the PUGAMP and the trial court further 

erred in holding that no commission permit was required for 

the development of HS-3. 

III. CONCLUSION 

 The trial court did not err in holding that the 

declaratory judgment action was properly before it and that 

the matters in controversy were not moot. However, we hold 

that the trial court erred in the declaratory judgment action 

by holding that with respect to the implementation of the 

PUGAMP, “the right to review was inherent in the right to 

participate in the planning process.” For the reasons stated 

herein, this error affected the trial court’s judgment in the 

BZA appeals. Finally, the trial court erred in holding that 

HS-3 is a feature shown on the PUGAMP and that no commission 

permit is required for its development. 

 With regard to these consolidated appeals, we will affirm 

in part and reverse in part as stated herein and remand these 

matters for further proceedings consistent with this opinion. 

Affirmed in part,

reversed in part,

and remanded. 

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