Accomack County violation of Dillon Rule
Accomack County, Virginia County Attorney Mark Taylor emailed us to address
the position we had previously taken on the County's Chesapeake / Atlantic
Preservation Overlay District [CAPOD]. Taylor wrote:
UARF - I have had a brief opportunity to read your e-mail regarding
countywide application of the Bay Act. Accomack County harbors no intent or
desire to violate any law. Virginia law enables localities to adopt this
law on a locality-wide basis. It is well-established that there is no partial
taking in VA, and there is no apparent or envisioned instance in which the
enactment would effect a complete taking. With these observations in mind, your
concerns about Dillon's Rule and takings issues appear unfounded.
Our response to Mr. Taylor ~~
Thank you for writing and expressing your concerns. Please note that
its position on the CAPOD and posted that revision in the early PM this
Friday. That revision reads:
UARF holds the position that the ACT includes the
seaside and accordingly the proposed CAPOD is not a violation of the Dillion
Rule and as such is lawful. UARF has looked into and asked its
civil rights specialist, Stephen Merrill (757-623-4200), to determine if
Accomack's residents have a class action suit on the federal level and an
injunction on the state level to stop the County from what some county
residents say is CAPOD's violations of both federal and state law. After
a review of the ACT, the VAC and the CAPOD is appears to UARF the inclusion
of the seaside is not a violation of the Dillon Rule. Violations of the
Dillon Rule were found in the CAPOD where the CAPOD said its provisions
would supersede Virginia law and not in the issues raised by HOV.
Our previous position was based misinformation contained
in documents provided to us. After obtaining and reading the draft CAPOD
on the County website it became obvious that the CAPOD was in conformity
with both the Code and the VAC. Our original position pained us greatly
as a great number of our directors are members of the Union of
Concerned Scientists, the Sierra Club, etc. and believe in the purpose of
We think the countywide application of the ACT is a good thing and needs to be
done. That being said it is our position that the guidelines of
government as passed by the legislatures from Washington, Richmond, or
Accomack County must follow the Virginia and federal constitutions and the
promulgations they authorize.
The plan your Supervisors have proposed appears to follow
the guidelines of the ACT and for the most part is in compliance with both the
ACT and VCR. Your local application of the ACT [written legislation] is
a good piece of work and whomever drafted it should be commended for the
outstanding job he did.
One of Dillon Rule conflicts
we found was what is referenced in paragraph of the fourth on page
four: Sec. 106-382. Conflict with other regulations.
In any case where the requirements of
this article conflict with any other provision of the County Code or existing
state or federal regulations, whichever imposes the more stringent restrictions shall apply.
(Ord. of 11-19-2003(3))
We have a problem with this as it seems to say that your
Supervisors have the right to supersede what the state legislature has
mandated is the law of Virginia. This would appear to be contrary
to Virginia's application of Dillon's Rule. This being said the CAPOD is
a worthy effort of Accomack County's Government. It’s a job well done.