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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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