Fields v. Elkins

By Judge Alfred d. Swersky Complainant’s Demurrer to the Cross-Bill filed by Defendants will be sustained; however, her Plea in Bar will be denied. Leave will be granted to Cross-Complainants to amend their claim if they so desire. The zoning laws give authority to localities to regulate the use of property. Va. Code § 15.2-2280. The legislation provides a comprehensive scheme for this regulation, including civil penalties (§ 15.2-2209) as well as injunctive or other appropriate relief to abate or correct any violations (§ 15.2-2208). Nowhere in the legislative scheme can any language be found from which the Court could find a legislative intent to create a private cause of action to enjoin violations of the local zoning ordinances. It is significant to note that the Cross-Claim is based solely on the alleged violation of the zoning ordinances. No other common law cause of action is alleged. The general rule is that penal (or regulatory) statutes do not automatically create a private right of action and equity will not enter an injunction because such a statute has been violated. Black & White Cars, Inc. v. Groome Transportation, 247 Va. 426 (1994). This rule is qualified where there are special damages to property rights that are difficult to quantify. Black & White Cars, Inc., supra, at 430. No such allegation is made by Counter-Claimants nor would damages be difficult to quantify. When a statute creates a right (here the right of a locality to zone properly within its boundaries) and also provides the remedy for vindication of that right (the empowerment of a zoning administrator to seek to impose civil penalties or enjoin the violations as well as criminal sanctions), then the [207] remedy is exclusive unless the statute says otherwise. Vansant and Gusler, Inc. v. Washington, 245 Va. 356, 360 (1993). Counter-Defendant’s appropriate remedy is by Demurrer not by Plea in Bar. Hence, the Demurrer is sustained and the Plea in Bar denied. Counter-complainants are granted leave to amend if they choose.