Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, 

JJ., and Carrico and Koontz, S.JJ. 

JOHN L. JENNINGS, 

T/A JENNINGS BOATYARD, INC. 

 OPINION BY 

v. Record No. 100068 CHIEF JUSTICE CYNTHIA D. KINSER 

 April 21, 2011 

BOARD OF SUPERVISORS OF 

NORTHUMBERLAND COUNTY 

FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY 

Harry T. Taliaferro, III, Judge 

In this appeal, a landowner with riparian rights who 

operates a commercial marina/boatyard challenges a locality's 

zoning authority to regulate the construction of additional 

mooring slips and accompanying piers that would lie beyond the 

mean low-water mark of a tidal, navigable body of water. The 

landowner also challenges as void the locality's special 

exception permit ordinance, claiming that the ordinance lacks 

adequate standards to guide the governing body's decision to 

grant or deny a special exception permit. Because we conclude 

that the circuit court did not err in denying the landowner's 

request for declaratory relief on either ground, we will affirm 

the circuit court's judgment.

MATERIAL FACTS AND PROCEEDINGS 

The facts essential to this appeal are undisputed. The 

appellant, John L. Jennings, owns approximately 12.4 acres of 

real property in Northumberland County (the County), part of 

which fronts Cockrell's Creek, a tidal, navigable tributary of 
the Chesapeake Bay. On this property, Jennings operates a 

business known as "Jennings Boatyard Marina" (the Marina), "a 

commercial marina/boatyard with 45 mooring slips and 

accompanying piers." In March 2005, Jennings engaged a marine 

design construction company to develop plans and submit 

necessary applications for 46 additional mooring slips with 

accompanying piers (the Project). The proposed slips would lie 

approximately 300 to 400 feet beyond the mean low-water mark of 

Cockrell's Creek. They are designed as "deep water slips" for 

sailboats. 

Subsequently, the marine design construction company 

submitted a special exception permit application on Jennings' 

behalf. The County's Board of Supervisors (the Board) initially 

tabled the application, indicating that it wanted Jennings to 

obtain a riparian rights survey. After obtaining the survey, 

Jennings reduced the additional slips requested from 46 to 31 to 

accommodate riparian lines. After a public hearing on Jennings' 

application, the Board unanimously denied the special exception 

permit. In a letter to Jennings, the County's zoning 

administrator explained that the "Board felt that since there 

are currently three (3) marinas in the area, including 

[Jennings'], that have mooring slips available for boaters, 

there would be no justification to allow an expansion at this 

time." 

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Jennings filed an action seeking declaratory relief against 

the Board. See Code §§ 8.01-184 and -186. Jennings alleged 

that only the Virginia Marine Resources Commission (VMRC) has 

authority to permit the placement of piers beyond the mean lowwater mark and therefore the County lacked jurisdiction to 

regulate the Project through its special exception permit 

process. The Board answered, stating that it had authority to 

regulate beyond the mean low-water mark of the County's creeks 

and rivers. 

Jennings moved for summary judgment, asserting that the 

County's zoning ordinances requiring a special exception permit 

for the expansion of the Marina are invalid and void ab initio. 

In ruling on that motion, the circuit court concluded that 

"title to land below [the] mean low[-]water [mark] is in the 

Commonwealth," and that "the VMRC has the exclusive right to 

issue permits" authorizing use of that land. However, the court 

rejected Jennings' argument that Code § 28.2-1203(A)(5), which 

allows the construction of private noncommercial piers beyond 

the mean low-water mark without VMRC's authorization, carves out 

from VMRC's otherwise exclusive jurisdiction a locality's "sole 

grant of authority . . . to zone in tidal[,] navigable waters." 

The court instead reasoned that the "general grant of authority 

to zone land . . . necessarily and fairly implie[s] that the 

County[,] in zoning upland for a marina/boatyard[,] has the 

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authority to regulate . . . piers and boat slips which are 

necessarily all part of the same use." Thus, the circuit court 

concluded that Jennings' "proposed expansion of piers and slips 

may be constructed only pursuant to a permit from the VMRC, but 

[is also] subject to the Northumberland County Zoning 

Ordinance." The circuit court, accordingly, denied Jennings' 

motion for summary judgment. 

At a subsequent evidentiary hearing regarding the 

reasonableness of the Board's denial of Jennings' application 

for a special exemption permit, Jennings argued for the first 

time that the County's special exception permit ordinances, 

Northumberland Zoning Ordinance (NZO) §§ 148-95(A) and -138(A) 

and (B), are void for lack of any "objective criteria stated." 

Jennings also reiterated that the Board lacked zoning authority 

over the Project because it would lie beyond the mean low-water 

mark. The Board disputed, inter alia, Jennings' argument that 

the County's ordinances are "inadequate."1

In a letter opinion, the circuit court concluded that the 

Board's denial of Jennings' special exemption permit application 

 1

 The Board argued before the circuit court that Jennings 

did not challenge "the adequacy of [the] special exception 

ordinance" in his bill for declaratory relief and that the issue 

therefore was not "before the [c]ourt." Because the circuit 

court nevertheless ruled on that issue and the Board has not 

assigned cross-error to the court's doing so, the issue is now 

before this Court. See Rule 5:18(b). 

4
"was not arbitrary, capricious and unreasonable."2 Relying on 

Bollinger v. Board of Supervisors, 217 Va. 185, 187, 227 S.E.2d 

682, 683 (1976), the court further concluded "that the 

[challenged ordinance] is not invalid for failure to state 

standards to be applied by the Board in the issuance of a 

special exception permit." Accordingly, the circuit court 

entered an order denying the relief sought by Jennings. 

Jennings appeals from the circuit court's judgment. 

ANALYSIS 

The primary issue now before us is whether the County's 

zoning jurisdiction extends to the regulation of commercial 

piers and marinas to be constructed on bottomlands that lie 

beyond the mean low-water mark in the Commonwealth's tidal, 

navigable waters. Secondarily, we must decide whether the 

County's ordinance regulating the issuance of special exception 

permits is void for lack of adequate standards. Both issues are 

questions of law reviewed de novo by this Court. See Schefer v. 

City Council, 279 Va. 588, 592, 691 S.E.2d 778, 780 (2010); 

 2

 This Court did not award Jennings an appeal on his 

assignment of error asserting that the Board's denial of his 

special exception permit application was arbitrary and 

capricious. Thus, that issue is not before us. Because the 

Court awarded an appeal limited to Jennings' assignments of 

error challenging the County's zoning authority over the Project 

and the validity of the County's ordinance regarding special 

exception permits, the rule requiring exhaustion of 

administrative remedies does not apply. See Dail v. York 

County, 259 Va. 577, 582, 528 S.E.2d 447, 449 (2000). 

5
Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 416 & n.9, 

690 S.E.2d 84, 87 & n.9 (2010). 

"Zoning is a legislative power vested in the Commonwealth 

and delegated by it, in turn, to various local governments for 

the enactment of local zoning ordinances." Byrum v. Board of 

Supervisors, 217 Va. 37, 39, 225 S.E.2d 369, 371 (1976); accord

National Mar. Union v. City of Norfolk, 202 Va. 672, 680, 119 

S.E.2d 307, 312 (1961). Thus, a locality's zoning powers are 

" 'fixed by statute and are limited to those conferred expressly 

or by necessary implication.' " Board of Supervisors v. 

Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 613 

(1999) (quoting Board of Supervisors v. Horne, 216 Va. 113, 117, 

215 S.E.2d 453, 455 (1975)). Localities have been delegated 

authority to include in their zoning ordinances "reasonable 

regulations and provisions" "[f]or the granting of special 

exceptions under suitable regulations and safeguards[.]" Code 

§ 15.2-2286(A)(3). A governing body is also authorized to 

"reserve unto itself the right to issue such special 

exceptions," "notwithstanding any other provisions of this 

article." Id.

In Code § 15.2-2280, the General Assembly expressly granted 

localities the authority to zone "the territory under its 

jurisdiction." This authority extends to "regulat[ing], 

restrict[ing], permit[ting], prohibit[ing], and determin[ing]," 

6
inter alia, "[t]he use of land, buildings, structures and other 

premises for agricultural, business, industrial, residential, 

flood plain and other specific uses" as well as "[t]he . . . 

construction . . . of structures[.]" Code § 15.2-2280(1) and 

(2). Thus, the County has express authority to regulate 

Jennings' Project in accordance with the requirements of the 

County's zoning ordinances if the bottomland in Cockrell's Creek 

that lies seaward of the mean low-water mark is "territory under 

[the County's] jurisdiction." 

It is undisputed that such bottomland in Cockrell's Creek 

that lies seaward of the mean low-water mark is "the property of 

the Commonwealth," Code § 28.2-1200,3 and that "the limits or 

bounds" of Jennings' real property lying on Cockrell's Creek and 

his "rights and privileges . . . extend to the mean low-water 

mark but no farther." Code § 28.2-1202(A); Scott v. Burwell's 

Bay Improvement Ass'n, 281 Va. ___, ___, ___ S.E.2d ___, ___ 

(2011) (this day decided). Also, neither party disputes VMRC's 

regulatory authority over the bottomland in Cockrell's Creek 

seaward of the mean low-water mark, see Scott, 281 Va. at ___, 

___ S.E.2d at ___, also described as "state-owned bottomlands," 

Code § 28.2-101; see Code §§ 28.2-103, -1204, and -1205; or that 

 3

 "All the beds of the bays, rivers, creeks and the shores 

of the sea within the jurisdiction of the Commonwealth, not 

conveyed by special grant or compact according to law, shall 

remain the property of the Commonwealth." Code § 28.2-1200. 

7
the County's zoning authority over all "the territory under its 

jurisdiction" includes Jennings' real property, with its "rights 

and privileges . . . extend[ing] to the mean low-water mark." 

Code §§ 15.2-2280 and 28.2-1202(A). The dispute in this case 

concerns whether both the County and the VMRC enjoy concurrent 

regulatory authority over the Project to be constructed on 

state-owned bottomlands. 

As Jennings notes, the statutory provisions pertaining to a 

locality's zoning authority, specifically Article 7, titled 

"Zoning," in Chapter 22 of Title 15.2, provide no rule for 

determining what "territory" is "under [a locality's] 

jurisdiction" for purposes of zoning, with one exception.4

However, Code § 15.2-3105 provides, in pertinent part, that 

[t]he boundary of every locality bordering on the 

Chesapeake Bay, including its tidal tributaries 

(the Elizabeth River, among others), or the 

Atlantic Ocean shall embrace all wharves, piers, 

docks and other structures, except bridges and 

tunnels that have been or may hereafter be 

erected along the waterfront of such locality, 

and extending into the Chesapeake Bay, including 

its tidal tributaries (the Elizabeth River, among 

others), or the Atlantic Ocean. 

Jennings argues that this statute is not relevant to the 

question before us because it is found in Article 1, titled 

 4

 Code § 15.2-2281 provides that "the governing body of a 

county shall have jurisdiction over all the unincorporated 

territory in the county, and the governing body of a 

municipality shall have jurisdiction over the incorporated area 

of the municipality." 

8
"Boundary Lines Established by Commissioners," in Chapter 31 of 

Title 15.2. According to Jennings, Code § 15.2-3105 pertains 

only to establishing boundaries as between localities. We do 

not agree. This statute states that the boundaries of 

localities "bordering on the Chesapeake Bay, including its tidal 

tributaries . . . shall embrace all wharves, piers, docks and 

other structures . . . erected along the waterfront of such 

locality, and extending into the Chesapeake Bay, including its 

tidal tributaries." Code § 15.2-3105. The territory under a 

locality's jurisdiction subject to its zoning ordinances cannot 

vary depending on the identity of the parties to the dispute. 

Further, as the circuit court noted, "while [Code § 15.2-3105] 

sets a rule for application in establishing county boundary 

lines where the opposite banks of the creek are in different 

counties, it does not follow either logic or the law that when 

both sides of the creek are in the same county, piers built out 

from the shore are not located within the boundaries of that 

county." 

Jennings argues that even if Code § 15.2-3105 is 

applicable, VMRC's regulatory authority over the Commonwealth's 

bottomlands is exclusive. Jennings bases that assertion on Code 

§ 28.2-1200, which recognizes the Commonwealth's ownership of 

bottomlands, and Code § 28.2-1204, which delegates authority to 

VMRC to "[i]ssue permits for all reasonable uses of state-owned 

9
bottomlands not authorized under" Code § 28.2-1203(A). That 

statute requires a permit to be obtained from VMRC to "build 

. . . upon" the Commonwealth's bottomlands. Code § 28.2-

1203(A). We disagree with Jennings' analysis. 

The regulatory authority granted the VMRC by the General 

Assembly does not preclude, but rather contemplates, that VMRC 

and a locality will have concurrent authority to regulate the 

construction of piers upon state-owned bottomlands where the 

pier is also "erected along the waterfront of such locality." 

Code § 15.2-3105. Pursuant to Code § 28.2-1203(A)(5), a permit 

from VMRC is not required for the "placement of private piers 

for noncommercial purposes by owners of the riparian lands in 

the waters opposite those lands" if such piers conform to 

certain specifications, but they remain "[s]ubject to any 

applicable local ordinances." Thus, we hold that the circuit 

court did not err in concluding that the County's zoning 

authority "embrace[s]" the entirety of Jennings' proposed 

construction, even the portion that "extend[s] into the 

Chesapeake Bay['s] tidal tributaries," i.e., Cockrell's Creek. 

Code § 15.2-3105. 

The circuit court also did not err in holding that NZO 

§ 148-138(A) is not "invalid for failure to state standards to 

be applied by the Board in the issuance of a special exception[] 

10
permit." NZO § 148-95(A)(21)5 requires a special exception 

permit for commercial or private, noncommercial marinas and 

boatyards. Pursuant to NZO § 148-138(A),6 special exception 

permits "shall be subject to such conditions as the governing 

body deems necessary to carry out the intent of this chapter," 

i.e., Chapter 148, styled "Zoning." 

In Bollinger, this Court addressed whether a section of the 

Roanoke County Code was unconstitutional because it failed to 

provide adequate standards to guide the governing body's 

decision whether to grant conditional use permits. 217 Va. at 

186, 227 S.E.2d at 683. The challenged section of the Roanoke 

County Code required a conditional use permit for certain uses 

of real property, such as "borrow pits and sanitary fill method 

garbage and refuse sites." Id. (internal quotation marks 

omitted). That section of the county code also stated that 

"[t]hese permits shall be subject to such conditions as the 

governing body deems necessary to carry out the intent of this 

chapter." Id. (internal quotation marks omitted). Virtually 

the same language appears in NZO § 148-138(A). Because the 

governing body there, like the County in this case, reserved 

unto itself the power to issue conditional use permits, we held 

 5

 This ordinance has been recodified as NZO § 148-

107(A)(21). 

6

 This ordinance has been recodified as NZO § 148-150(A). 

11
that it was performing a legislative function when it granted or 

denied such permits. Id. We further held that "zoning 

ordinances enacted pursuant to [former Code § 15.1-491, now Code 

§ 15.2-2286(A)(3),] need not include standards concerning 

issuance of special use permits where local governing bodies are 

to exercise their legislative judgment or discretion." Id. at 

187, 227 S.E.2d at 683. The same conclusion applies to the 

County ordinance at issue in this appeal. But see, e.g., Ames 

v. Town of Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990) 

(noting that "delegations of legislative power" from a 

locality's governing body to a board of zoning appeals "are 

valid only if they establish specific policies and fix definite 

standards to guide the official, agency, or board in the 

exercise of the power"). 

Jennings, nevertheless, contends that this Court's decision 

in Cole v. City Council, 218 Va. 827, 241 S.E.2d 765 (1978), 

compels a different conclusion. There, this Court addressed a 

City of Waynesboro ordinance reserving to the City Council "'the 

right to issue a special exception . . . permit whenever public 

necessity and convenience, general welfare or good zoning 

practice justifies such special exception.'" Id. at 832, 241 

S.E.2d at 769 (emphasis added). We concluded that the ordinance 

at issue was "fatally defective and invalid" because it reserved 

to the 

12
[City] Council the authority to issue a special 

exception . . . permit for the construction of a 

building in any zoning district in Waynesboro 

whenever, in its sole discretion, such action is 

justified by public necessity and convenience and 

the general welfare. The ordinance gives [City] 

Council an opportunity to grant a special 

exception without a consideration of good zoning 

practices or a consideration by it of the 

purposes of the zoning ordinances of the city or 

the objectives which zoning ordinances seek to 

accomplish. 

Id. at 833, 241 S.E.2d at 769. 

As nothing in NZO § 148-138(A) authorizes the Board to 

determine whether a special exception permit should be granted 

outside "the framework of the zoning statutes and principles 

that apply to zoning" or provides "an open invitation for a 

special exception to be granted without any consideration being 

given to certain basic principles of law applicable in the 

zoning field," that ordinance is not void for lack of adequate 

standards. Cole, 218 Va. at 833-34, 241 S.E.2d at 769-70; see

Bollinger, 217 Va. at 186-87, 227 S.E.2d at 683. 

CONCLUSION 

For these reasons, we will affirm the judgment of the 

circuit court. 

Affirmed. 

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