Present: Hassell, C.J., Keenan, Kinser, Lemons, Agee,∗

 and 

Goodwyn, JJ., and Lacy, S.J. 

BOARD OF ZONING APPEALS OF 

FAIRFAX COUNTY 

v. Record No. 071395 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

BOARD OF SUPERVISORS OF September 12, 2008 

FAIRFAX COUNTY 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

R. Terrence Ney, Judge 

 The sole issue in this appeal is whether the circuit 

court erred in dismissing a declaratory judgment action filed 

by the Board of Zoning Appeals of Fairfax County (BZA) against 

the Board of Supervisors of Fairfax County (Board of 

Supervisors) based on the court’s conclusion that the BZA does 

not have the authority to institute litigation on its own 

behalf. 

 The BZA’s declaratory judgment action was prompted by 

certain positions taken by the County regarding the BZA. In 

2004, the Fairfax County Executive sent a letter to the BZA 

stating that the Board of Supervisors “will no longer pay for 

private legal counsel to represent the BZA and will not permit 

the County Attorney or his staff to represent the BZA” except 

when the BZA is alleged to have violated the Virginia Freedom 

of Information Act, Code §§ 2.2-3700 through -3714, or when 

 ∗

 Justice Agee participated in the hearing and decision of 

this case prior to his retirement from the Court on June 30, 

2008. 
BZA members are sued individually in their official 

capacities. In a subsequent letter, the County Executive 

informed the BZA that it was not “authorized to hire private 

legal counsel to act in a capacity that is adverse to the 

interests of the Board of Supervisors . . . or the Zoning 

Administrator of Fairfax County.” Prior to this time, the 

County Attorney or private counsel defended the BZA in 

certorari proceedings filed pursuant to Code § 15.2-2314. In 

2005, the Fairfax County Attorney separately asserted in a 

letter to the then Chief Judge of the Nineteenth Judicial 

Circuit that, pursuant to Code § 15.2-2308(A), the Circuit 

Court of Fairfax County could not make appointments to the BZA 

without the concurrence of the Board of Supervisors.

 In 2006, the BZA filed this declaratory judgment 

proceeding, seeking a declaration that the BZA was entitled to 

have the Board of Supervisors “appropriate and pay” litigation 

expenses and reasonable sums for legal counsel chosen by the 

BZA in certiorari proceedings pursuant to Code § 15.2-2314 and 

in “any litigation arising from the BZA’s performance of its 

public functions.” The BZA also sought a declaration that the 

Fairfax County Circuit Court could appoint members of the BZA 

without the concurrence of the Board of Supervisors. The 

Board of Supervisors filed a demurrer arguing, inter alia, 

that the BZA was a “creature of statute” and no statute 

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conferred upon the BZA the authority to sue the Board of 

Supervisors “or anyone else.” The circuit court agreed with 

the Board of Supervisors, granted the demurrer and dismissed 

the declaratory judgment action. The BZA filed a timely 

appeal in this Court. 

DISCUSSION 

 The sole issue on appeal - whether the BZA has the 

authority to file this declaratory judgment action - is an 

issue of law which we review de novo. Glazebrook v. Board of 

Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003). 

 We have consistently held that boards of zoning appeals 

are “creatures of statute possessing only those powers 

expressly conferred.” Board of Zoning Appeals v. Cedar Knoll, 

Inc., 217 Va. 740, 743, 232 S.E.2d 767, 769 (1977); Lake 

George Corp. v. Standing, 211 Va. 733, 735, 180 S.E.2d 522, 

523 (1971). The BZA concedes that no Virginia statute 

expressly grants the BZA the authority to institute litigation 

on its own behalf. Nevertheless, the BZA argues that our 

decisions such as Cedar Knoll and Lake George are not 

dispositive of this issue. The BZA argues that under Dillon’s 

Rule a public body derives its powers in three distinct ways - 

powers that are expressly authorized by statute, powers fairly 

or necessarily implied from the express powers, and powers 

that are essential and indispensable. The BZA argues that 

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while our decisions in Lake George and Cedar Knoll precluded a 

board of zoning appeals from acquiring a power by virtue of 

the second component or “corollary” of Dillon’s Rule, that is, 

powers fairly or necessarily implied from expressed powers, 

neither case addressed the application of the third component 

or “corollary.” The BZA identifies this third “corollary” as 

powers afforded a public body because such powers are 

essential and indispensable to the performance of the public 

body’s duties. This “corollary” of Dillon’s Rule, the BZA 

continues, was acknowledged in City of Portsmouth v. Virginia 

Railway and Power Co., 141 Va. 54, 61, 126 S.E. 362, 364 

(1925), with regard to the powers of the State Corporation 

Commission, also a “creature of statute.” That case, 

according to the BZA, provides the basis for concluding in 

this case that the BZA has the power to sue on its own behalf 

because such power is necessary and essential to enable the 

BZA to exercise the powers expressly granted it. We reject 

the BZA’s position because it is based on a misperception of 

the “corollary” of Dillon’s Rule and misapplication of City of 

Portsmouth. 

City of Portsmouth did not involve a “corollary” to 

Dillon’s Rule. In fact, Dillon’s Rule was not mentioned in 

that case. The issue was whether the State Corporation 

Commission had the authority to abrogate an obligation imposed 

4
under the terms of the franchise between the city and the 

Virginia Railway and Power Company, a public utility subject 

to the Commission’s jurisdiction. City of Portsmouth, 141 Va. 

at 56-57, 126 S.E. at 362. In resolving the issue, the Court 

recited that the Commission’s authority stemmed from 

constitutional and statutory grants but cautioned that those 

provisions should be liberally construed to give the 

Commission not only powers expressly granted, but also powers 

fairly implied from the language or necessary to allow 

exercise of expressly granted powers. Id. at 61, 126 S.E. at 

364. Although this description of the Commission’s powers is 

consistent with Dillon’s Rule, the Court never characterized 

the grant of authority as derived from Dillon’s Rule and 

ultimately held that the Commission did not have the express 

authority to abrogate the franchise obligation. Id. 

Therefore, our decision in City of Portsmouth does not support 

the position advanced by the BZA in this case. 

More importantly, the BZA’s interpretation of Dillon’s 

Rule and its “corollary” is incorrect. Dillon’s Rule provides 

that municipal corporations have only those powers that are 

expressly granted, those necessarily or fairly implied from 

expressly granted powers, and those that are essential and 

indispensable. City of Chesapeake v. Gardner Enters., 253 Va. 

243, 246, 482 S.E.2d 812, 814 (1997); accord Ticonderoga Farms 

5
6

v. County of Loudoun, 242 Va. 170, 173-74, 409 S.E.2d 446, 448 

(1991); City of Richmond v. Confrere Club of Richmond, 239 Va. 

77, 79, 387 S.E.2d 471, 473 (1990). The corollary to Dillon’s 

Rule does not refer to sources from which a municipal 

corporation derives its power but to the application of the 

rule to other public bodies such as boards of supervisors and 

school boards in addition to municipal corporations. See

Board of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 

453, 455-56 (1975) (boards of supervisors); Kellam v. School 

Board, 202 Va. 252, 254, 117 S.E.2d 96, 98 (1960) (school 

boards). Therefore, the holding in Cedar Knoll and Lake 

George is that neither Dillon’s Rule nor its corollary, that 

is the extension to other public bodies, are applied to boards 

of zoning appeals and such boards are limited to powers 

expressly granted. 

In summary, the principle established in Cedar Knoll and 

Lake George, that boards of zoning appeals have only those 

powers expressly granted, is dispositive in this case. As the 

BZA concedes, the Virginia Code contains no express grant of 

authority allowing the BZA to institute litigation on its own 

behalf. Accordingly, we will affirm the judgment of the 

circuit court. 

Affirmed.