PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Lacy, S.J. 

COUNTY OF CHESTERFIELD 

 OPINION BY 

v. Record No. 082575 JUSTICE LEROY F. MILLETTE, JR.

 February 25, 2010 

TETRA ASSOCIATES, LLC 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Michael C. Allen, Judge 

In this appeal, we address whether the circuit court 

erred by declaring that two Chesterfield County ordinances, 

which were relied upon by the County in rejecting a 

preliminary subdivision application, violated the Code of 

Virginia and were void. 

The issue in this case concerns the validity of three 

separate ordinance provisions in the Chesterfield County Code 

of Ordinances (1997) (County Code). 

The first ordinance provision is found in County Code 

§ 17-2, a definition section of the County’s Subdivision 

Ordinance, which defines “Subdivision, residential parcel” as 

the “division . . . of any parcel of land for residential use, 

into two or more parcels all of which are more than five 

acres.” The second ordinance provision, also found in County 

Code § 17-2, defines “Subdivision, lot” as the “division of 

any parcel of land for residential or residential townhouse 

use, into two or more lots, any one of which is less than five 
acres . . . for the purpose [of] residential or residential 

townhouse use.” The third ordinance provision is County Code 

§ 17-36(a), also in the County’s Subdivision Ordinance, titled 

“Recordation of subdivision plat prior to compliance with 

zoning ordinance prohibited,” which provides: 

Except as noted in sub-section (b), no plat for a 

lot subdivision shall be recorded unless the land is 

included within a residential, or townhouse 

residential zoning district, or is a residential use 

in a commercial zoning district as defined by 

chapter 19 of this Code. 

The validity of these ordinance provisions is decided in 

the context of two other County Code ordinance provisions. 

The first such ordinance is County Code § 19-123(a), in the 

County’s Zoning Ordinance, which provides that “Residential 

use” is a permitted “by right” use in the “A Agricultural 

District.” The second ordinance is County Code § 19-128(f), 

also in the County’s Zoning Ordinance, which permits one acre 

lots in the Agricultural District, providing: 

Required lot area. Each primary structure, together 

with accessory structures, hereafter erected shall 

be located on a lot having an area of not less than 

43,560 square feet [i.e. one acre] and a width of 

not less than 150 feet. 

Facts and Proceedings

Tetra Associates, LLC (Tetra) owns a 7.071 acre parcel of 

land in Chesterfield County. The property is zoned 

Agricultural pursuant to the County Code. Tetra filed a 

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preliminary subdivision application to divide its property 

into five residential lots, with a minimum lot size of 43,560 

square feet (one acre) and a minimum lot width of 150 feet. 

The Planning Department reviewed the application and notified 

Tetra that its application must be modified to comply with the 

County Code. Among its comments and suggestions, the Planning 

Department noted: 

This subdivision does not comply with Section 17-36 

of the Chesterfield County Subdivision Ordinance. 

Section 17-36 prohibits recordation of a plat for a 

lot subdivision unless the land is included within a 

residential or townhouse residential zoned district. 

This tentative [plat] is on land which is zoned 

Agricultural and therefore does not comply with 

Section 17-36 and must be rezoned for residential 

use. 

 The Planning Department also noted: 

Based on the fact that this property is zoned 

Agricultural it cannot be subdivided as shown on the 

plat dated 1/12/05[. B]ased on Section 17-36 of the 

Subdivision Ordinance the property must be zoned to 

a residential zone to divide it as shown. Please 

contact the zoning group for information on the 

zoning process.1

Tetra filed an action for declaratory relief, asking the 

circuit court to: “[d]eclare that the County’s disapproval of 

 1

 When Tetra’s preliminary subdivision application was 

denied, Tetra filed an amended application reducing the number 

of lots to four lots, each with a minimum lot size of more 

than one acre and a minimum lot width of 150 feet. The 

Planning Department rejected this application with comments 

similar to the comments above. However, even before the 

Planning Department’s comments were received by Tetra, Tetra 

instituted legal action. 

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the preliminary subdivision application is not properly based 

on the applicable subdivision ordinances and, as a result, is 

improper and void;” “[d]eclare . . . the County’s disapproval 

of the preliminary subdivision application to be arbitrary, 

capricious and unreasonable;” declare that County Code § 17-36 

is void; and declare that County Code § 17-2 is void “to the 

extent it requires that [Tetra’s property] be rezoned prior to 

being subdivided.” The County filed a motion to dismiss, 

which the circuit court denied. Thereafter, the parties filed 

cross motions for summary judgment. 

The circuit court entered a final order granting Tetra’s 

motion for summary judgment. The circuit court issued a 

letter opinion, in which the court stated that the County’s 

authority to establish ordinances for the subdivision of land 

derives from Code §§ 15.2-2240 through -2279. Furthermore, 

the court noted that Code § 15.2-2241 provides “mandatory” 

provisions for subdivision ordinances, and Code § 15.2-2242 

provides “optional” provisions for subdivision ordinances. 

The circuit court stated that these two code sections 

“comprise the universe of powers granted to the County in the 

exercise of its authority to regulate the subdivision of 

land.” The circuit court ruled that neither of these statutes 

allow the County to demand rezoning as a condition to 

subdivision approval, and accordingly ruled that County Code 

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§§ 17-2 and -36 were void. The circuit court also ruled that 

the County’s disapproval of Tetra’s preliminary subdivision 

application on the basis of Tetra’s failure to comply with 

these provisions of the County Code was void and that the 

County was required to approve Tetra’s subdivision 

application. 

Discussion

On appeal, the County argues that the circuit court erred 

when it ruled that County Code §§ 17-2 and -36 were void. 

According to the County, Code §§ 15.2-2201 through -2279 

“allow[] local governments to independently define what 

constitutes a subdivision and establish minimum subdivision 

parcel sizes.” The County also asserts that the circuit court 

erred in ruling that the County required Tetra to rezone its 

property because, according to the County, County Code §§ 17-2 

and -36 do not require property to be rezoned as a condition 

to subdivision approval. 

The County contends that Code § 15.2-2201 and case law 

grant localities “‘clear’ authority to define subdivision[s] 

within their borders by lot size and number.” The County 

asserts that the circuit court committed error by focusing its 

analysis solely on Code §§ 15.2-2241 and -2242, and not 

applying the related provisions appearing in Code §§ 15.2-2201 

though -2279. By failing to do so, the County argues that the 

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circuit court failed to look at the entire statutory framework 

that provides localities the power to enact subdivision 

ordinances. 

The County also asserts that the circuit court 

misinterpreted this Court’s holding in Board of Supervisors v. 

Countryside Inv. Co., 258 Va. 497, 522 S.E.2d 610 (1999). The 

County argues that Countryside is distinguishable from this 

case because the Planning Department’s denial of Tetra’s 

application was not improperly based on “zoning 

considerations,” but was based upon valid ordinances defining 

the term “subdivision” and regulating the subdivision of land. 

Finally, the County argues that the circuit court erred 

by ruling County Code §§ 17-2 and -36 void in their entirety. 

Rather, assuming the circuit court was correct in declaring 

the relevant sections of County Code §§ 17-2 and -36 void, the 

County asserts that the circuit court should have severed the 

offending portions of the ordinances from the valid portions, 

ruling only the offending portions void. 

Tetra responds that the circuit court did not improperly 

apply the rules of statutory construction because it properly 

considered Code §§ 15.2-2240 through –2279 and Countryside. 

Tetra contends that by creating separate rules for 

“Subdivision, lot” and “Subdivision, residential parcel” in 

County Code § 17-2, the County is attempting to regulate 

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subdivision of property in a manner not permitted under the 

limited authority granted by the Code of Virginia. 

Tetra argues that through the definition of “Subdivision, 

residential parcel,” the County attempts to dictate minimum 

lot size by requiring subdivided lots in the Agricultural 

District to be at least five acres. Tetra contends that this 

violates the holding of Countryside because it effectively 

rezones Tetra’s property by imposing restrictions on uses that 

are otherwise allowed in the Agricultural District. 

Finally, Tetra argues that the circuit court’s order 

declaring County Code §§ 17-2 and -36 void is not 

impermissibly overbroad. Tetra acknowledges that the circuit 

court stated that “the subject provisions of the subdivision 

ordinance are void and unenforceable,” and thus Tetra concedes 

that the circuit court only intended to invalidate the 

provisions in County Code § 17-2 defining “Subdivision, lot” 

and “Subdivision, residential parcel,” which the County relied 

upon in denying Tetra’s application, as well as subsection (a) 

in County Code § 17-36. 

We first address whether the County had the authority to 

enact the County Code sections that the circuit court has 

ruled void. 2 By enacting Code § 15.2-2201, the General 

 2

 The County’s argument that Code §§ 15.2-2201 through –

2279, which comprise a portion of Chapter 22 of the Code of 

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Assembly conferred upon localities the power to enact their 

own definition of “subdivision.” Nevertheless, localities’ 

power to define “subdivision,” and thereby regulate the 

subdivision of property, is limited. We have previously 

stated that localities may not, “under the guise of a 

subdivision ordinance, enact standards which would effectively 

permit [localities] to rezone property in a manner 

inconsistent with the uses permitted by the property’s zoning 

classification.” Countryside, 258 Va. at 504-05, 552 S.E.2d 

at 613-14. Thus, our inquiry focuses on whether County Code 

§ 17-36(a), which prohibits lot subdivision in the 

Agricultural District, imposes restrictions on the subdivision 

of Tetra’s land which are otherwise permitted by the Zoning 

Ordinance governing the Agricultural District. 

County Code § 19-128(f) permits one acre lots in the 

Agricultural District. By imposing a five acre minimum lot 

size in the Agricultural District through applications of 

County Code § 17-36(a) and the definitions of lot subdivision 

and residential parcel subdivision contained in County Code 

 

Virginia titled “Planning, Subdivision of Land and Zoning,” as 

well as this Court’s decision in Board of Supervisors v. 

Georgetown Land Co., 204 Va. 380, 131 S.E.2d 290 (1963), grant 

localities the authority to define the term “subdivision” does 

not address the issue in this case. The issue is not whether 

the County has been granted the authority to regulate 

subdivision, but rather whether a locality’s subdivision 

ordinance can be applied to effectively rezone property. 

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§ 17-2, the County infringes upon the right to subdivide to a 

minimum one acre parcel of land in the Agricultural District 

even though a residence on a one acre lot is a permitted use 

in Tetra’s property’s current Agricultural zoning 

classification. County Code § 17-36(a), by prohibiting a lot 

subdivision in the Agricultural District and requiring a 

residential parcel subdivision with a requisite five acre 

minimum lot size, effectively rezones Tetra’s property in a 

manner inconsistent with the uses permitted by Tetra’s 

Agricultural zoning classification. The County is not 

permitted to use a subdivision ordinance to prohibit a use of 

Tetra’s property that is permitted by the property’s zoning 

classification. 258 Va. at 505, 522 S.E.2d at 614. 

We agree with Tetra that the circuit court correctly 

ruled that the County shall be required to process Tetra’s 

preliminary subdivision application. The effect of County 

Code § 17-36(a) and the definitions of “Subdivision, lot” and 

“Subdivision, residential parcel” in County Code § 17-2 is to 

restrict the use of lot subdivisions to the residential zoning 

district, townhouse residential zoning district, and 

residential use in a commercial zoning district even though 

County Code §§ 19-123(a) and -128(f) permit residential use 

and one acre lots, respectively, in the Agricultural District. 

The County Code ordinance provisions at issue in this case do 

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not allow lot subdivisions with a minimum lot size of one acre 

in the Agricultural District, which exceeds the County’s 

authority granted by the General Assembly in drafting a 

subdivision ordinance. Countryside, 258 Va. at 505, 522 

S.E.2d at 614. Thus, County Code § 17-36(a) is void as 

violative of the Code of Virginia. The definitions of 

“Subdivision, lot” and “Subdivision, residential parcel” as 

applied to a preliminary subdivision application in the 

County’s zoned Agricultural District are likewise violative of 

the Code of Virginia and void. 

We also hold that the circuit court, as it expressed in 

its final order, erred in declaring County Code §§ 17-2 and -

36 void in their entirety. The circuit court’s order states, 

in pertinent part: “§ 17-36 of the Chesterfield County 

subdivision ordinance is violative of the Code of Virginia and 

void [and] § 17-2 of the Chesterfield County subdivision 

ordinance is violative of the Code of Virginia and void 

. . . .” Despite the agreement of the County and Tetra that 

only certain provisions of these County Code sections were an 

improper exercise of the County’s authority, the circuit 

court’s order, on its face, rules County Code §§ 17-2 and -36 

void in their entirety. 

County Code § 17-2, titled “Definitions,” provides a list 

of 86 definitions, only two of which Tetra claimed were void 

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as an improper exercise of the County’s authority. Also, 

Tetra’s complaint regarding County Code § 17-36 is limited to 

subsection (a). Thus, the circuit court should have focused 

its ruling on the relevant sections of County Code § 17-2 and 

-36, rather than declaring the entirety of these County Code 

sections void. County Code § 1-3, titled “Severability of 

parts of Code,” provides: 

The chapters, articles, sections, paragraphs, 

sentences, clauses, phrases and words of this Code 

are severable. If any word, phrase, clause, 

sentence, paragraph, section, article or chapter of 

this Code is declared unconstitutional or invalid by 

the valid judgment or decree of a court of competent 

jurisdiction, such unconstitutionality or invalidity 

shall not affect any of the remaining chapters, 

articles, phrases, clauses, sentences, paragraphs, 

sections and words of this Code. 

We have addressed the principle of “severability” in the 

context of challenges to laws passed by the General Assembly. 

In discussing the doctrine of severability as applied to 

constitutional challenges to an act passed by the General 

Assembly, we stated: 

The principle of severability is also applicable to 

the various provisions of an enactment. The General 

Assembly expressly has provided that any 

unconstitutional provisions of an enactment will be 

severed from its remaining valid provisions, unless 

the enactment specifically states that its 

provisions may not be severed or that the provisions 

must operate in accord with one another. 

Marshall v. Northern Va. Transp. Auth., 275 Va. 419, 428, 657 

S.E.2d 71, 76 (2008) (citing Code § 1-243). 

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Like the enactment by the General Assembly reviewed in 

Marshall, the County has explicitly provided that invalid or 

unconstitutional provisions of the County Code are severable. 

Thus, the circuit court erred in ruling County Code §§ 17-2 

and -36 void in their entirety. 

Conclusion

The circuit court erred by declaring County Code §§ 17-2 

and -36 void in their entirety. However, County Code §§ 17-

36(a) is void as an exercise of power not authorized by the 

General Assembly. The definitions of “Subdivision, lot” and 

“Subdivision, residential parcel” are void as applied to 

Tetra’s preliminary subdivision application for a lot 

subdivision of its property located in the Agricultural 

District. We will remand this proceeding to the circuit court 

for further proceedings consistent with this opinion. 

Affirmed in part,

reversed in part,

and remanded.

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