Report on the case
Dail v. York

On April 21, 2000 the Virginia Supreme Court rendered its final decision in the case of Ann F Dail, et al, v. Yourk Count, et al, (Record No. 991591). Mrs. Dail and her son (the “Dails”) had originally filed the cash challenging York County's Forestry Ordinance on the ground that it conflicted with and was preempted by the State's Right to Forestry Law (SB592) enacted in 1997. (Codified at Va. Code § 10.1-1126.1) The Circuit Court upheld the Ordinance and dismissed the Dails' case. The Circuit Court ruled that the Dails had failed to exhaust their administrative remedies and that the ordinances were not preempted. The Supreme Court agreed to hear the appeal and the case was argued on March 3, 2000.

The Supreme Court reversed the Circuit Court as to that portion of its decision that said that the Dails had failed to exhaust their administrative remedies prior to challenging the ordinances. However, it affirmed the Circuit Court's findings as to the validity of the ordinances.

The Dails asserted that the ordinances were invalid for the following reasons:

  • That the requirement for the zoning administrator's approval of a forest management plan prior to timber harvesting constituted a permit and was therefore prohibited by the state law;
  • That provisions of the ordinances requiring front and side lot buffers and prohibiting clear cutting in certain areas were preempted by the state law's requirement that local ordinances could not prohibit timber harvesting;
  • That requirements for stream-side buffers were in conflict with state forestry BMPs and were therefore preempted.

The Court found that localities were not preempted from enacting ordinances regulating forestry, and could include compliance with forestry ordinances in the 10 day notice and review requirement allowed by the statute. The Court found the requirement for the zoning administrator to approve a Forestry Management Plan was not prohibited. The Court decided that such “approval” was not the same as a “permit.”

The Court found that the ordinances' prohibition on clearcutting in certain areas was not a prohibition on timber harvesting but simply a restriction on harvesting method. Thus, the provision in the state law that says that localities cannot prohibit timber harvesting does not preclude them from prohibiting clearcutting as a method of harvesting as long as less extensive methods are allowed. The same rationale was applied to side lot and front buffers, since the buffer requirements do not prohibit all timber harvesting on the property.

Finally, with respect to the argument that stream-side buffer requirements conflicted with state BMPs and were therefore preempted, the Court said that because Virginia's BMPs are voluntary, they do not have the force and effect of law and therefore do not preempt local ordinances. The clear implication of this finding was that if the state had in place mandatory BMPs or similar regulations, localities would not be allowed to adopt ordinances that conflict with them. As long as BMPs remain voluntary, however, the Court said that localities were not constrained from imposing additional regulations.

In summary, the Court takes a very narrow ruling of the 1997 regulation, leaving substantial areas for localities to continue regulation of forestry as long as the law remains unchanged. Localities will be able to adopt an ordinance regulating forestry, as long as it does not constitute an outright prohibition or require a permit or fee, and may use the approval process to insure pre-harvest compliance. It is likely, that any, buffer requirements will be upheld unless the landowner can show that the requirement is unreasonable and unnecessary with respect to that particular property. Local restrictions on harvesting methods, such as clear-cutting prohibition, will likely be upheld unless they can be shown to be unreasonable and unnecessary in a particular case.

It is important to keep in mind that the Dail case was decided entirely on the law, and not on the facts. It is possible that future cases involving local regulations would turn on the facts and require the Court to decide whether or not a particular ordinance met the requirements of being necessary, reasonable and consistent with the purposes of state law. In the meantime; however, the Dail decision leaves localities with considerable leeway to restrict timber harvesting.

Last modified 2007-07-12