Report on 15.2-2232

Draft - Prepared by Herd Planning & Design, Ltd. April 15, 2002

The construction of new community facilities, such as schools and fire stations, or utilities, such as water and sewer lines, usually occurs in response to an identifiable public need. The need for new facilities and services usually arises from community growth and development, technological advances, changing demographics, or a combination of all three. Most often, the facilities constructed are publicly owned and operated by a governmental entity. Other facilities meeting public needs are privately owned and operated. Construction of new community facilities or even expansion of existing facilities requires careful consideration by local decision makers to assure that the needs and interests of the community are fulfilled in the most appropriate manner. The Commonwealth of Virginia recognizes that this is an important right and responsibility of local government and has provided local governments with the legislative authority to evaluate public facility and utility improvements for conformance with the localitys adopted comprehensive plan.

Section 15.2-2232 of the Code of Virginia (APPENDIX A) states that when a comprehensive plan has been approved and adopted by a governing body, the plan shall control the general or approximate location, character and extent of each feature shown on the plan. This code section further states that unless a feature is already shown on the adopted master plan or part thereof…no street or connection to an existing street, park or other public area, public building or public structure, public utility facility or public service corporation facility, other than a railroad facility, shall be constructed, established or authorized, unless and until the general location or approximate location, character, and extent thereof has been submitted to and approved by the [planning] commission as being substantially in accord with the adopted comprehensive plan or part thereof…. This section of the Code also includes specific procedures to be followed by local jurisdictions during review of proposed facilities and identifies specific instances when a facility does not need to be reviewed for conformity by the planning commission. The process of conducting these reviews is commonly referred to as a 2232 review or something similar.

To assist Montgomery County in its comprehensive plan update and to determine how best to apply section 15.2-2232 to public facility proposals in the County, Herd Planning & Design, Ltd. surveyed several local jurisdictions (APPENDIX B) to determine how Section 15.2-2232 is applied on a day-to-day basis in communities around Virginia. The procedures for reviewing public facilities and utilities for conformity with the comprehensive plan vary widely between localities. Generally, larger and more urbanized communities, where there is more demand for public services, have developed the most specific guidelines for implementing Section 15.2-2232. Most rural communities deal with these proposals less frequently and on a case-by-case basis. Our findings are summarized below.

A. Common Exemptions

Certain types of public facilities and utilities are exempt from local review under the provisions of Section 15.2-2232 and others are commonly exempt for other reasons. Public facilities and utilities that are not generally reviewed by local governments under Section 15.2-2232 are described below:

1. State and Federal facilities are exempt from local government review under Section 15.2-2232. While not explicitly stated in this Code section, the review of proposed federal and state facilities is exempt from local zoning requirements, including review for conformity with the comprehensive plan, because of sovereignty issues at the federal and state level. The Federal Government does require that federal agencies consider local land use restrictions and give due consideration to local regulations in the construction of facilities. Although several jurisdictions conduct courtesy/advisory reviews of proposed state and federal facilities and work with entities proposing such facilities, these local reviews and recommendations are non-binding. A privately owned and operated facility located on State or Federal property may be subject to local government review under Section 15.2-2232 under certain circumstances. For example, the Virginia Court of Appeals determined that Fairfax County may require approval of privately owned telecommunications towers located on property leased from VDOT. Cities, counties and towns are all local governmental entities; no supremacy notion frees a county from complying with town or city land use regulations when operating within town or city and vice versa.

2. Electrical transmission lines and natural gas pipelines approved by the State Corporation Commission are exempt from local review under 15.2-2232 pursuant to Section 56.1- 46.1 and Section 56-265.2:1, respectively, of the Code of Virginia (Appendix C).

3. Railroad facilities and certain facilities funded by the Virginia Public Broadcasting Board are exempt from review at the specific direction of Section 15.2-2232.

4. Normal utility and facility line extensions and public facility improvements/enlargements are not generally subjected to review under Section 15.2-2232. While all jurisdictions exempt normal utility extensions from review, the definition of what is normal varies between localities. One locality, Fairfax County, uses specific threshold limitations (e.g. pipe size or service area population) and has a general written description of what is considered a normal extension of public utilities. In fact, there is general, if unwritten, agreement within each County as to what constitutes a normal service extension in that community. Most of the communities surveyed would require the extension of a water main or sewer trunk line to undergo review for conformity with the comprehensive plan pursuant to Section 15.2-2232, but the extension of a smaller water or sewer line to serve an approved subdivision or an individual house would not be subject to review. Paragraph D under section 15.2-2232 provides a useful rule of thumb for determining what is a normal service extension. If the public improvement is not the subject of the specific site plan or plat, but is to be constructed to serve the development subject of the plat, it is most likely a normal service extension.

Despite general agreement, comprehensive plan policies unique to an individual community may trigger a 2232 review in one locality and not in another.

For example, the definition of a public utility system in Loudoun Countys Comprehensive Plan and Zoning Ordinance includes package wastewater treatment plants serving more than two households and such facilities are required to undergo a 2232 review. The Countys comprehensive plan policies also specifically require a 2232 review for these types of facilities. In other communities, such a facility may be considered a private facility and reviewed as part of a subdivision without triggering the 2232 review. In some but not all localities, a request to extend utilities outside a defined sewer and water service area, even to an individual house, may trigger a 2232 review, depending on how stringently Comprehensive Planning policies are applied.

5. None of the counties and towns that were surveyed requires Section 15.2-2232 review for public road improvements. Since most town and county roads are constructed by the Virginia Department of Transportation (VDOT) within state owned rights-of-way, none of the jurisdictions surveyed conduct a formal review of public road improvements under Section 15.2-2232. Most public road improvements occur following review and approval of rezoning and/or subdivision applications by the governing body and are typically reviewed for conformity with the Comprehensive Plan during review of those applications. Therefore, most jurisdictions feel additional review is not necessary. In jurisdictions where the local comprehensive plan reflects VDOT proposed road improvements, the planned improvements can be deemed a feature shown under Section 2232. Private road improvements are seldom reviewed under Section 2232 since they are generally associated with a rezoning or subdivision approval and are typically subject to construction standards developed by the locality approving the road. One notable exception is the Dulles Greenway in Loudoun County. This privately operated toll road was subjected to review under Section 15.2-2232 prior to its construction.

6. Most utility improvements constructed within the state-owned right-of-way are not reviewed for conformity with Section 15.2-2232. Facilities that are commonly constructed within state highway rights-of-way (such as fiber optic cables, gas lines and underground power lines) are generally treated as exempt from review by the majority of the jurisdictions surveyed either because they are located on state owned property or because they are considered to be normal service extensions. Over the past few years, several privately owned telecommunications towers have been constructed within the VDOT right-of-way without benefit of public review. This practice led Fairfax County to file a court challenge. On appeal, the Virginia Supreme Court found that private telecommunications companies leasing property from VDOT for privately owned towers are subject to local review under Section 15.2-2232. Despite this finding, there is wide variation on the review of telecommunication facilities among the surveyed jurisdictions. Most jurisdictions that do not require a 2232 review for telecommunication facilities do require some other type of legislative approval (such a conditional or special use permit) that includes a review of the facility for comprehensive plan conformity.

B. Review and Application Process

Although local jurisdictions use various names to describe the procedure outlined in Section 15.2-2232 (Section 2232 review, Commission Permit, Substantial Conformity Review, Features Shown Determination, Substantial Accord Review) once the need for a 2232 review is established, local jurisdictions must follow the procedural and timeline requirements outlined in the State Code. However, there is room for interpretation at the local level as to how extensive a 2232 review will be based on the level of detail shown in the local Comprehensive Plan and how well the Zoning Ordinance implements the Comprehensive Plan.

1. In each jurisdiction, there is an administrative professional empowered to determine, on a case-by-case basis, if a Section 15.2-2232 review is required. In most jurisdictions the Planning Director or the Zoning Administrator, or his/her designee, determines if a Section 2232 review is required. Some Zoning Ordinances include the 2232 review process (under some name) as a type of land development application, including the description of what facilities are subjected to such review and the filing requirements for 2232 applications. Many Zoning Ordinances do not include this level of detail or even refer to the 2232 process. The evaluation of whether on not such a review is required is generally triggered in larger and more urban communities by a pre-proposal conference with the department, public service authority or private company proposing a facility or facility expansion, or in response to a written request for a determination as to whether the review is needed. In smaller communities, planning and zoning staff members are usually aware of proposed facility expansions and acts to ensure that appropriate applications and reviews are conducted. Several jurisdictions noted the County or Town attorney is consulted when there is uncertainty about whether or not to apply section 15.2-2232.

2. The scale and scope of the 2232 review may be limited to an administrative feature shown determination, forwarded to the local planning commission for affirmation, or may include a full scale public review process including one or two public hearings. Several jurisdictions have a two-tier approach to implementing Section 15.2-2232. If a proposed facility is shown on a public facilities/utilities map in the Comprehensive Plan, or is referenced by a specific comprehensive plan policy, or has been approved as part of a proffered rezoning or as part of a subdivision, the staff prepares a written, administrative determination that the proposed facility is deemed a feature shown on the Comprehensive Plan. This written determination is then forwarded to the Planning Commission for administrative approval, and if the Planning Commission agrees with the staff determination, no public hearing or review is required. Generally, the Planning Commission forwards evidence of its administrative decision to the governing body. In instances where the plan lacks sufficient detail to make an administrative determination, many jurisdictions subject the proposal to a full review by other agencies followed by a planning commission public hearing. A few jurisdictions also routinely require a public hearing at the board or council level, even though such a hearing is not required by State Code as part of the 2232 review process. According to the State Code, the planning commission public hearing is optional, unless the local governing body directs that a Planning Commission public hearing must be held. In rural jurisdictions where the 2232 process is not well defined by the local zoning ordinance, the comprehensive plan or local practice, the local governing body will frequently direct that a public hearing be held to review public utility and facility improvements, particularly if a proposal is controversial. All of the jurisdictions were processing the Section 15.2-2232 proposals within the 60-day timeframe specified in the State Code, except in instances where the review timeline is extended by the governing body. However, in jurisdictions with well-defined procedures, the 60-day timeline did not begin until an application was deemed complete.

3. Most of the public utility and facility projects reviewed for conformity with a local comprehensive plan under Section 15.2-2232 are also subject to other types of legislative review and usually these applications are processed concurrently. Many of the towns and counties interviewed for this report routinely require approval of a conditional use permit or special exception for the construction of major utility improvements such as water and/or sewer systems, public facilities like schools, parks, fire stations and recreation facilities, and/or private telecommunication facilities. When this is the case, the relevant applications are usually processed concurrently and are scheduled for public hearing on the same agenda. Since the 2232 review is solely a determination of whether or not a proposed facility conforms to the comprehensive plan, a planning commission may not impose conditions on or require modifications to the proposal. However, a planning commission may require modifications to a proposed facility as part of its review of the other applications processed concurrent with the 2232 review.

4. The 2232 process is not as well defined and user friendly as other types of land development applications processed by local governments. Local jurisdictions usually maintain a set of filing requirements for the types of development applications they typically process. These standards provide guidelines to private landowners and ensure consistency between applications. Few jurisdictions have such information available for the 2232 process.

C. Alternatives to the 2232 Review

Almost all of the jurisdictions surveyed apply Section 15.2-2232 in some capacity at the local level. Of the jurisdictions surveyed, Fairfax and Loudoun County are the most conservative in their approach to the 2232 review. Several jurisdictions find the 2232 process redundant and may not require a 2232 review when another type of application, such as a conditional use permit or subdivision review, requires that a proposed public facility or utility be reviewed for conformance with the comprehensive plan. A few jurisdictions have developed alternative procedures to address the provisions of Section 15.2-2232. These are outlined below:

1. In Augusta County, public facilities such as schools, parks, recreational facilities, treatment plants and similar facilities are only permitted in a Public Use Overlay District. Designation of a Public Use Overlay district occurs on a case-by-case basis through rezoning. This approach ensures the review of the proposal for conformity with the Comprehensive Plan, requires two public hearings and allows the County to recommend design modifications and accept development proffers. This gives the County broader review authority than the 2232 review process itself.

2. In the Town of Blacksburg all land development proposals, including subdivisions and site plan applications, are evaluated for conformity with the applicable comprehensive plan and are subject to public hearings at the planning commission and board/town council level. The Town of Blacksburg does not typically use the 2232 review process since its comprehensive plan and zoning ordinance were recently revised to conform with each other. If a use is permitted by-right in a particular zoning district, it is considered in conformance with the comprehensive plan. Any uses which are not by-right are subjected to legislative review.

3. In Frederick County, Virginia, the Comprehensive Plan is updated annually and proposed CIP facilities or other public projects of significance are added to the Comprehensive Plan by reference or on the public facilities map. This approach keeps the plan current so that most proposed public improvements are deemed to be a feature shown by the time construction occurs. Also, each time a rezoning occurs that results in an expansion in the Countys sewer and/or water service area, the Countys comprehensive plan is amended.

Because of the wide variation among localities implementing Section 15.2-2232, it is difficult to say definitively which process is the right process. The statute does provide room for interpretation at the local level and it is clear that localities are adapting the provisions of Section 15.2-2232 to their particular needs based on (i) the frequency that these types of proposals are processed in their own jurisdictions, (ii) the level of detail included in local comprehensive plans and zoning ordinances and (iii) staffing levels. In applying section 15.2-2232 it is important to clearly understand what types of facilities may and may not be subjected to review, to establish clear processing standards for these types of applications and to apply the established standards consistently within that jurisdiction in every case.

As part of the Comprehensive Plan update, there are opportunities to improve and clarify the application of Section 15.2-2232 in the County. The following recommendations are offered as a means of simplifying the process and ensuring that the County takes a consistent approach to the review of public facility and utility improvements under Section 15.2-2232:

1. The updated Comprehensive Plan should include maps depicting planned public improvements including PSA utility projects, proposed road improvements (VDOT or other), and to the extent possible the location of planned public facilities such as schools, parks and libraries.

2. The updated Comprehensive Plan should include general locational criteria or policy language addressing the preferred location of future public facilities such as schools, parks, libraries, fire stations, police stations, etc. Such criteria should include those characteristics that determine whether a particular use is substantially in accord with the comprehensive plan such as: compatibility with surrounding uses, sewer and water availability if needed, environmental conditions, impact on existing and future traffic patterns, health, safety and welfare, and existing and projected demographic patterns. For certain types of uses, the County may even include policy language in its comprehensive plan stating that a Section 15.2-2232 is required.

3. Provide clear guidance to agencies and applicants, as well as staff members, to ensure consistent application of Section 15.2-2232 in Montgomery County. Some jurisdictions, including Henrico County and Fairfax County, have developed a set of standard operating procedures for 15.2-2232 reviews in their jurisdictions. Montgomery County should consider developing a similar set of guidelines which should include (i) a definition of public facility (ii) a list of what types of facilities are exempt from 15.2-2232 review (iii) application requirements for agencies and individuals submitting projects/proposals subject to 15.2-2232 applications (iv) an outline of how the County will process 15.2-2232 applications, including how administrative determinations will be made regarding features shown.

APPENDIX A

¤ 15.2-2232. Legal status of plan.

A. Whenever a local planning commission recommends a comprehensive plan or part thereof for the locality and such plan has been approved and adopted by the governing body, it shall control the general or approximate location, character and extent of each feature shown on the plan. Thereafter, unless a feature is already shown on the adopted master plan or part thereof or is deemed so under subsection D, no street or connection to an existing street, park or other public area, public building or public structure, public utility facility or public service corporation facility other than railroad facility, whether publicly or privately owned, shall be constructed, established or authorized, unless and until the general location or approximate location, character, and extent thereof has been submitted to and approved by the commission as being substantially in accord with the adopted comprehensive plan or part thereof. In connection with any such determination, the commission may, and at the direction of the governing body shall, hold a public hearing, after notice as required by ¤ 15.2-2204.

B. The commission shall communicate its findings to the governing body, indicating its approval or disapproval with written reasons therefor. The governing body may overrule the action of the commission by a vote of a majority of its membership. Failure of the commission to act within sixty days of a submission, unless the time is extended by the governing body, shall be deemed approval. The owner or owners or their agents may appeal the decision of the commission to the governing body within ten days after the decision of the commission. The appeal shall be by written petition to the governing body setting forth the reasons for the appeal. The appeal shall be heard and determined within sixty days from its filing. A majority vote of the governing body shall overrule the commission.

C. Widening, narrowing, extension, enlargement, vacation or change of use of streets or public areas shall likewise be submitted for approval, but paving, repair, reconstruction, improvement, drainage or similar work and normal service extensions of public utilities or public service corporations shall not require approval unless involving a change in location or extent of a street or public area.

D. Any public area, facility or use as set forth in subsection A which is identified within, but not the entire subject of, a submission under either ¤ 15.2-2258 for subdivision or provision 8 of ¤ 15.2-2286 for development or both may be deemed a feature already shown on the adopted master plan, and, therefore, excepted from the requirement for submittal to and approval by the commission or the governing body; provided, that the governing body has by ordinance or resolution defined standards governing the construction, establishment or authorization of such public area, facility or use or has approved it through acceptance of a proffer made pursuant to ¤ 15.2-2303.

E. Approval and funding of a public telecommunications facility by the Virginia Public Broadcasting Board pursuant to Article 12 (¤ 2.2-2426 et seq.) of Chapter 24 of Title 2.2 shall be deemed to satisfy the requirements of this section and local zoning ordinances with respect to such facility with the exception of television and radio towers and structures not necessary to house electronic apparatus. The exemption provided for in this subsection shall not apply to facilities existing or approved by the Virginia Public Telecommunications Board prior to July 1, 1990. The Virginia Public Broadcasting Board shall notify the governing body of the locality in advance of any meeting where approval of any such facility shall be acted upon.

F. On any application for a telecommunications facility, the commission's decision shall comply with the requirements of the Federal Telecommunications Act of 1996. Failure of the commission to act on any such application for a telecommunications facility under subsection A submitted on or after July 1, 1998, within ninety days of such submission shall be deemed approval of the application by the commission unless the governing body has authorized an extension of time for consideration or the applicant has agreed to an extension of time. The governing body may extend the time required for action by the local commission by no more than sixty additional days. If the commission has not acted on the application by the end of the extension, or by the end of such longer period as may be agreed to by the applicant, the application is deemed approved by the commission.

(Code 1950, ¤¤ 15-909, 15-923, 15-964.10; 1958, c. 389; 1960, c. 567; 1962, c. 407, ¤ 15.1-456; 1964, c. 528; 1966, c. 596; 1968, c. 290; 1975, c. 641; 1976, c. 291; 1978, c. 584; 1982, c. 39; 1987, c. 312; 1989, c. 532; 1990, c. 633; 1997, cc. 587, 858; 1998, c. 683.)

List of Jurisdictions Surveyed for Report

Town of Blacksburg

Town of Christiansburg

Albemarle County

Augusta County

Chesterfield County

Fairfax County

Frederick County

Henrico County

Loudoun County

Rappahannock County

Roanoke County

Rockingham County

Spotsylvania County

APPENDIX C

Code of Virginia Section 56-46.1.

Commission to consider environmental, economic and improvements in service reliability factors in approving construction of electrical utility facilities; approval required for construction of certain electrical transmission lines; notice and hearings.

A. Whenever the Commission is required to approve the construction of any electrical utility facility, it shall give consideration to the effect of that facility on the environment and establish such conditions as may be desirable or necessary to minimize adverse environmental impact. In such proceedings it shall receive and give consideration to all reports that relate to the proposed facility by state agencies concerned with environmental protection; and if requested by any county or municipality in which the facility is proposed to be built, to local comprehensive plans that have been adopted pursuant to Article 3 (¤ 15.2-2223 et seq.) of Chapter 22 of Title 15.2. Additionally, the Commission (i) may consider the effect of the proposed facility on economic development within the Commonwealth and (ii) shall consider any improvements in service reliability that may result from the construction of such facility.

B. No overhead electrical transmission line of 150 kilovolts or more shall be constructed unless the State Corporation Commission shall, after at least thirty days' advance notice by (i) publication in a newspaper or newspapers of general circulation in the counties and municipalities through which the line is proposed to be built, (ii) written notice to the governing body of each such county and municipality, and (iii) causing to be sent a copy of the notice by first class mail to all owners of property within the route of the proposed line, as indicated on the map or sketch of the route filed with the Commission, which requirement shall be satisfied by mailing the notice to such persons at such addresses as are indicated in the land books maintained by the commissioner of revenue, director of finance or treasurer of the county or municipality, approve such line. Such approval shall not be required for transmission lines constructed prior to January 1, 1983, for which the Commission has issued a certificate of convenience and necessity. Such notices shall include a written description of the proposed route the line is to follow, as well as a map or sketch of the route. As a condition to approval the Commission shall determine that the line is needed and that the corridor or route the line is to follow will reasonably minimize adverse impact on the scenic assets, historic districts and environment of the area concerned and, in the case of any application which is filed with the Commission in the years 1991 and 1992, for approval of a line of 500 kilovolts or more, any portion of which is proposed for construction west of the Blue Ridge Mountains, that the applicant will reasonably accommodate requests to wheel or transmit power from new electric generation facilities constructed after January 9, 1991.

C. If, prior to such approval, any interested party shall request a public hearing, the Commission shall, as soon as reasonably practicable after such request, hold such hearing or hearings at such place as may be designated by the Commission. In any hearing the public service company shall provide adequate evidence that existing rights-of-way cannot adequately serve the needs of the company.

If, prior to such approval, written requests therefor are received from twenty or more interested parties, the Commission shall hold at least one hearing in the area which would be affected by construction of the line, for the purpose of receiving public comment on the proposal. If any hearing is to be held in the area affected, the Commission shall direct that a copy of the transcripts of any previous hearings held in the case be made available for public inspection at a convenient location in the area for a reasonable time before such local hearing.

D. For purposes of this section, "interested parties" shall include the governing bodies of any counties or municipalities through which the line is proposed to be built, and persons residing or owning property in each such county or municipality and "environment" or "environmental" shall be deemed to include in meaning "historic," as well as a consideration of the probable effects of the line on the health and safety of the persons in the area concerned.

For purposes of this section, "qualifying facilities" means a cogeneration or small power production facility which meets the criteria of 18 C.F.R. Part 292; "public utility" means a public utility as defined in ¤ 56-265.1; and "reasonably accommodate requests to wheel or transmit power" means:

1. That the applicant will make available to new electric generation facilities constructed after January 9, 1991, qualifying facilities and other nonutilities, a minimum of one-fourth of the total megawatts of the additional transmission capacity created by the proposed line, for the purpose of wheeling to public utility purchasers the power generated by such qualifying facilities and other nonutility facilities which are awarded a power purchase contract by a public utility purchaser in compliance with applicable state law or regulations governing bidding or capacity acquisition programs for the purchase of electric capacity from nonutility sources, provided that the obligation of the applicant will extend only to those requests for wheeling service made within the twelve months following certification by the State Corporation Commission of the transmission line and with effective dates for commencement of such service within the twelve months following completion of the transmission line.

2. That the wheeling service offered by the applicant, pursuant to subdivision D 1 of this section, will reasonably further the purposes of the Public Utilities Regulatory Policies Act of 1978 (P. L. 95-617), as demonstrated by submitting to the Commission, with its application for approval of the line, the cost methodologies, terms, conditions, and dispatch and interconnection requirements the applicant intends, subject to any applicable requirements of the Federal Energy Regulatory Commission, to include in its agreements for such wheeling service.

E. In the event that, at any time after the giving of the notice required in subsection B of this section, it appears to the Commission that consideration of a route or routes significantly different from the route described in the notice is desirable, the Commission shall cause notice of the new route or routes to be published and mailed in accordance with subsection B of this section. The Commission shall thereafter comply with the provisions of this section with respect to the new route or routes to the full extent necessary to give interested parties in the newly affected areas the same protection afforded interested parties affected by the route described in the original notice.

F. Approval of a transmission line pursuant to this section shall be deemed to satisfy the requirements of ¤ 15.2-2232 and local zoning ordinances with respect to such transmission line.

(1972, c. 652; 1973, c. 307; 1974, c. 498; 1983, c. 438; 1984, cc. 287, 562; 1985, c. 282; 1991, cc. 90, 148; 1996, c. 254; 2001, c. 758.)

Code of Virginia Section 56-265.2:1-2232

(not attached hereto)