Background
In late 2023, ABoone Real Estate, Inc. applied to rezone several lots on Medmont Circle in Roanoke’s Greater Deyerle neighborhood from R-12 residential single-family to MXPUD (mixed-use planned unit development) to allow construction of 24 townhomes on roughly 3.5 acres. After continuances at ABoone’s request, the Roanoke Planning Commission formally opened a public hearing at its June 10, 2024 meeting, accepted comments from four residents, and continued the hearing to its July 8 meeting. Before the July session, ABoone submitted non-substantive amendments—adding tree-canopy detail, clarifying setback descriptions, and attaching exterior renderings. The Planning Commission published newspaper notice on July 1 and 8, held the continued hearing, and unanimously recommended approval. The Roanoke City Council approved the rezoning on July 15, 2024.
Fourteen neighboring property owners (“Neighbors”) filed suit in Roanoke Circuit Court seeking declaratory judgment and injunctive relief. They argued that (1) the Planning Commission lacked any authority to continue the hearing at all; (2) if continuance was permissible, fresh advertising notice was required for the July session; (3) an amendment to Code § 15.2-2204 enacted after the June 10 hearing changed the applicable advertising requirements; (4) ABoone’s mid-process amendments independently triggered re-advertising; and (5) an all-residential townhome project did not qualify as MXPUD. The circuit court sustained defendants’ demurrer and dismissed the complaint with prejudice. The Court of Appeals affirmed on all grounds.
The Court’s Holding
Writing for a three-judge panel, Judge Lorish applied the Dillon Rule—Virginia’s doctrine of strict construction that limits local governing bodies to powers expressly granted by the General Assembly, necessarily or fairly implied from those grants, or essential to the declared objects of the municipality—and held that the Planning Commission had implied authority to continue a rezoning hearing from one regularly scheduled meeting to the next. The General Assembly expressly required planning commissions to hold regularly scheduled meetings, to exercise general supervision over their own affairs, and to prescribe rules pertaining to their hearings. Code §§ 15.2-2214, 15.2-2221. From those express grants, the court held, it is necessarily implied that a commission can schedule, reschedule, and extend discussion of a pending application across meetings. Code § 15.2-2214’s provision allowing postponement of an entire meeting due to hazardous weather conditions addresses postponing the meeting itself—not individual agenda items—and cannot be read to preclude the implied power to carry a particular application to the next session.
On notice, the court held that once the public received proper statutory notice that a hearing was scheduled for June 10 and the hearing commenced that day, no additional advertising was required for the July 8 continuation. The 2024 amendment to Code § 15.2-2204 that changed advertising requirements did not apply retroactively to a hearing that had already started under the prior version. ABoone’s non-substantive June 25 amendments—increasing tree canopy, clarifying setback descriptions, and adding exterior renderings—did not alter the substance of the application and therefore did not trigger fresh advertising. Finally, the court affirmed the City Council’s MXPUD determination and found the record sufficient to make the rezoning decision “fairly debatable,” the applicable standard for reviewing a legislative land-use decision.
Key Takeaways
- Under the Dillon Rule, a Virginia planning commission has implied authority to continue a pending rezoning application from one regularly scheduled meeting to the next; Code § 15.2-2214’s weather-related postponement provision addresses postponing the meeting itself, not carrying individual agenda items forward.
- When a public hearing is properly noticed and commences at the advertised meeting, a reasonable continuance to a later scheduled meeting does not require re-advertising under Code § 15.2-2204—the original notice satisfies the statute for the continued session.
- A statutory amendment to advertising requirements enacted after a hearing has already started does not apply retroactively to that pending proceeding.
- Non-substantive amendments to a rezoning application filed while the hearing is pending (renderings, setback clarifications, tree canopy adjustments) do not independently trigger a new advertising obligation.
- Judicial review of a legislative rezoning decision asks only whether the record evidence made the decision “fairly debatable,” not whether the court would have reached the same result.
Why It Matters
Virginia land-use litigation regularly involves Dillon Rule challenges to procedural steps taken by local planning commissions and councils. Garrett v. Roanoke City Council resolves a question without a clear answer in prior published opinions: whether a planning commission may continue an open rezoning hearing from one monthly meeting to the next without fresh statutory advertising. The court’s answer—yes, as a matter of implied authority, and without re-advertising unless the application is substantively amended—gives practitioners representing applicants, localities, and neighboring owners a clear benchmark for when additional notice is required and when it is not. Local government attorneys should note that the continuation of a public hearing, as distinct from the postponement of an entire commission meeting, falls within the commission’s implied supervisory authority over its own proceedings under Code § 15.2-2221.
The retroactivity holding is equally important. When the General Assembly amends the advertising requirements in Code § 15.2-2204, the amendment does not automatically reach pending hearings that commenced under the prior statute. Practitioners advising localities on rezoning applications should confirm at the outset which version of the statute governs and document the date the hearing opened, in order to defeat any mid-process retroactivity argument if the law changes while the application is pending.