The News Desk is a collection of news, notes and breaking items affecting the Fredericksburg community.
Spotsy runs a-fowl of state’s Dillon Rule
Spotsylvania County overstepped its bounds when it took the unusual step of allowing pet chickens in some voting districts while prohibiting them in others.
At least that’s the take of Attorney General and gubernatorial candidate Ken Cuccinelli, who recently issued an advisory opinion on the matter.
He noted that Virginia follows the Dillon Rule, which says that local governing bodies can only do what the state explicitly allows them to do.
“I find nothing in the Code of Virginia that provides express authority to regulate fractional parts of a zoning district according to the boundaries of electoral districts,” Cuccinelli wrote in an opinion dated Sept. 20.
At issue is a February decision by the Board of Supervisors that lets a person have from two to six chickens in most residential areas. The catch is that the revised ordinance applies to just four of the county’s seven voting districts.
The other districts—Battlefield, Berkeley and Lee Hill—retained the previous, more restrictive countywide rule that permits chickens only on agricultural and rural lots of at least five acres. Supervisors Emmitt Marshall, Benjamin Pitts and Gary Skinner, who represent those districts, opposed the relaxed chicken policy.
Marshall said on Wednesday that he had heard about the attorney general’s opinion but hadn’t seen it.
“I suppose I need to talk to the county attorney . . . so that I would know more about what we can do as far as the law is concerned,” he said.
Efforts to reach Pitts and Skinner were unsuccessful.
County Administrator Doug Barnes said county staff will review the attorney general’s opinion and make a recommendation to supervisors.
Supervisors Chairman Paul Trampe said he assumes the board would have to schedule a public hearing to change the chicken ordinance.
“I agree with the attorney general’s opinion that having laws apply or not based on one’s magisterial district is arbitrary,” he said.
Trampe pushed for a new chicken-friendly ordinance after hearing from a constituent who wanted to keep hens in her backyard. He was supported by Supervisors Timothy McLaughlin and David Ross.
But none of those three supported the ordinance that was ultimately approved, which applied to some of the county’s voting districts while excluding others. Ross said that the move set a bad precedent.
County Attorney James Benkahla, who requested Cuccinelli’s advisory opinion, declined to comment Wednesday. He was deputy county attorney at the time of the vote on chickens.
Six people have received the county’s permission to have chickens since the ordinance was amended, Director of Animal Control William Tydings said. He said that, to his knowledge, nobody has complained about those new chicken owners.
Fowl must be kept in backyard coops at least 35 feet from adjacent homes and at least 10 feet from property lines.
Those who want to have hens in residential areas must submit an application to the county and pay a $30 inspection fee. It’s unclear if anybody has been turned down because of their voting district.
Cuccinelli said in his opinion that state law requires zoning classifications to be uniform. But under the revised ordinance, chickens are allowed in some residentially zoned areas but denied in others.
“On its face, the February amendment treats similarly situated persons within the same zoning district differently,” Cuccinelli wrote. “It uses a jurisdictional division created for an unrelated purpose, the electoral district, to inconsistently regulate land use within several of its zoning districts.”
Jeff Branscome: 540/374-5402