If there's no public sewer available, can a Virginia locality still require a developer to get a special exception under the zoning ordinance to install a VDH-approved alternative onsite septic system?

Plain-English summary

Alternative onsite sewage systems are non-traditional septic systems that use treatment media (sand, peat, plastic, wetlands, aerators) instead of soil for wastewater treatment. They're popular where soils are bad for conventional septic, or where conventional systems are too close to groundwater or surface water. The Virginia Department of Health approves them.

In 2009, the General Assembly added § 15.2-2157(C) to the Virginia Code: when public sewer is not available, a locality "shall not prohibit the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health" for the conditions where they will operate. Subsection (D) also barred localities from setting maintenance standards stricter than those set by the Board of Health.

A Virginia senator told the AG that some localities had enacted zoning ordinances requiring developers to obtain a "special exception" to install a privately owned alternative septic system. Because granting a special exception is discretionary (the local governing body can deny it), requiring a special exception is effectively a power to prohibit. The AG concluded that's what § 15.2-2157(C) bars.

The opinion is careful to limit its scope. A locality keeps general authority under § 15.2-2157(A) and § 15.2-2128 to regulate, inspect, and even deny onsite sewage applications where a public sewer is available. The Dillon Rule also limits localities to the powers expressly granted. Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (2010). Under that rule, anything that exceeds the statutory authority is invalid.

Two practical caveats from the AG: a locality may still review the system plans as part of site plan review under § 15.2-2286(A)(8), and the locality may impose maintenance requirements as long as they don't exceed Board of Health regulations.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 15.2-2157 has been amended since 2010, and Board of Health regulations governing alternative onsite sewage systems have been revised, expanded, and reorganized over time. Anyone planning a current alternative septic installation should check the current statutory and regulatory text, including changes affecting designer licensing and maintenance requirements.

Common questions

What's an alternative onsite sewage system?
A treatment works that isn't a conventional septic system and doesn't discharge to a point source. Alternative systems use sand, peat, plastic, wetlands, lagoons, aerators, or disinfection devices to treat wastewater, often combined with float switches, pumps, and electrical components. They are common where conventional septic isn't workable.

When is a public sewer "not available"?
The statute does not define the term in this opinion. Generally it means the property cannot be connected to a public sewerage facility, either because none exists or because the existing facility is not realistically extendable to the site. Whether sewer is "available" is a factual question that may itself be contested.

Why is a special exception a problem?
Because granting a special exception is discretionary, the governing body could deny one even if all health-department conditions are met. Bd. of Supvrs. v. Southland Corp., 224 Va. 514 (1982), confirms that granting or denying a special exception is a legislative act. Allowing localities to require a special exception would functionally let them prohibit alternative systems case by case, undermining the prohibition in § 15.2-2157(C).

Can a locality still review the plans?
Yes. The AG noted that under § 15.2-2286(A)(8), a locality may require submission of alternative system plans as part of its site plan review process to ensure that technical requirements have been met. But review cannot impose requirements that exceed Board of Health regulations, and cannot be used to prohibit a system that meets § 15.2-2157(C).

What if a homeowner wants an alternative system in an area where sewer IS available?
The protection in § 15.2-2157(C) is conditioned on no sewer being available. Where sewer is available, the locality retains general authority under § 15.2-2157(A) and § 15.2-2128 to regulate, inspect, and even deny onsite sewage applications.

Does this opinion apply to maintenance rules?
Subsection (D) is broader: it doesn't contain the "when sewers are not available" qualifier. So § 15.2-2157(D)'s ceiling on local maintenance standards applies whether or not sewer is available. Logan v. City Council, 275 Va. 483 (2008), supports reading the statute as the General Assembly wrote it.

Background and statutory framework

VDH regulates both conventional and alternative onsite sewage systems. The relevant statutes and regulations distinguish between the two:

• Conventional onsite sewage system (§ 32.1-163): septic tanks with gravity, pumped, or siphoned conveyance to a gravity-distributed subsurface drainfield.
• Alternative onsite sewage system (§ 32.1-163): any treatment works that is not conventional and does not result in point source discharge.

Local zoning authority for sewage matters comes from three statutory sources:

1. § 15.2-2157(A): when sewers or sewerage disposal facilities are not available, localities may require installation, regulate, and inspect onsite sewage systems to protect public health.
2. § 15.2-2128: a county or town that has adopted a master plan for a sewage system can deny applications if denial appears to be in the best interest of the inhabitants.

Section 15.2-2157(C), added in 2009, is the prohibition relevant here: "[w]hen sewers or sewerage disposal facilities are not available, a locality shall not prohibit the use of alternative onsite sewage systems . . . ." Subsection (D), added at the same time, bars localities from imposing maintenance standards exceeding Board of Health rules established pursuant to § 32.1-164.

Reading the statutes together: when conflict appears, the more specific provision prevails (Thomas v. Commonwealth, 244 Va. 1 (1992); Phipps v. Liddle, 267 Va. 344 (2004)). The court must give force and effect to each related statute (Ainslie v. Inman, 265 Va. 347 (2003); Ragan v. Woodcroft Village Apts., 255 Va. 322 (1998)).

Dillon Rule: "When a local ordinance exceeds the scope of this authority, the ordinance is invalid." City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243 (1997); Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397 (1995) ("If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body.").

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 15.2-2157(A), (C), (D)
• Va. Code Ann. § 15.2-2128
• Va. Code Ann. § 15.2-2286(A)(8)
• Va. Code Ann. § 32.1-163
• Va. Code Ann. § 32.1-164
• Bd. of Supvrs. v. Southland Corp., 224 Va. 514, 521, 297 S.E.2d 718, 721-22 (1982)
• Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618 (1992)
• Va. Nat'l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)
• Phipps v. Liddle, 267 Va. 344, 346, 593 S.E.2d 193, 195 (2004)
• Kirkpatrick v. Bd. of Supvrs., 146 Va. 113, 125, 136 S.E. 186, 190 (1926)
• Ainslie v. Inman, 265 Va. 347, 353, 577 S.E.2d 246, 249 (2003)
• Ragan v. Woodcroft Village Apts., 255 Va. 322, 325, 497 S.E.2d 740, 742 (1998)
• Logan v. City Council, 275 Va. 483, 492, 659 S.E.2d 296, 301 (2008)
• City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 80, 387 S.E.2d 471, 473 (1990)
• Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010)
• Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550, 553-54, 666 S.E.2d 315, 317 (2008)
• Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497, 502-05, 522 S.E.2d 610, 612-14 (1999)
• City of Chesapeake v. Gardner Enters., Inc., 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997)
• Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-061-Martin.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

December 3, 2010

The Honorable Stephen H. Martin
Member, Senate of Virginia
P.O. Box 700
Richmond, Virginia 23832

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Senator Martin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether § 15.2-2157(C) prevents a Virginia locality from requiring a developer to obtain a special exception to the local zoning ordinance in order to construct a privately-owned alternative onsite sewage system under the circumstances contemplated by that subsection.

Response

It is my opinion that a Virginia locality cannot require an owner to obtain a special exception to a local zoning ordinance in order to install an alternative onsite sewage system if the conditions set forth in § 15.2-2157(C) exist, namely that (i) there is no sewer or sewerage disposal facility available and (ii) the alternative onsite sewage system has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.

Background

Alternative onsite sewage systems, as well as conventional systems, are regulated by the Virginia Department of Health. Section 32.1-163 defines a conventional onsite sewage system as "a treatment works consisting of one or more septic tanks with gravity, pumped, or siphoned conveyance to a gravity distributed subsurface drainfield." Conversely, § 32.1-163 defines an alternative onsite sewage system as, "a treatment works that is not a conventional onsite sewage system and does not result in a point source discharge." Alternative systems are often utilized due to soils being unsuitable for conventional septic systems, or if there are too many conventional septic systems in one area, or the systems are too close to groundwater or surface waters.

Alternative systems use different treatment mediums such as sand, peat or plastic instead of soil to promote wastewater treatment. Some systems utilize wetlands, lagoons, aerators or disinfection devices for treatment. Float switches, pumps and other electrical or mechanical components are also used in alternative systems. According to the Virginia Department of Health, there is an increasing need for alternative septic systems as increasing residential growth pushes homeowners to find solutions for marginal soils and geology. The exponential growth in the value of buildable land is also prompting the increasing reliance on alternative systems.

Your letter notes that a locality has adopted an ordinance that requires a developer of a subdivision to obtain a special exception to the local zoning ordinance in order to construct a privately-owned alternative sewage system under certain conditions. You question whether a locality may impose such a requirement.

Applicable Law and Discussion

Pursuant to § 15.2-2157, when sewers or sewerage disposal facilities are not available, a locality has the general authority to regulate, inspect, and require the installation and maintenance of onsite sewage systems in order to protect public health. A county or town also has the general authority to deny applications for onsite sewage systems when the locality has adopted a master plan for sewerage. Section 15.2-2128 provides:

Notwithstanding any other provision of general law relating to the approval of sewage systems, the governing body of any county or town which has adopted a master plan for a sewage system is authorized to deny an application for a sewage system if such denial appears to it to be in the best interest of the inhabitants of the county or town.

In 2009, the General Assembly amended § 15.2-2157 to add subsection (C) specifically to bar localities from prohibiting "the use of alternative onsite sewage systems that have been approved by the Virginia Department of Health" in areas where sewers or sewerage disposal facilities are not available. The amendments to § 15.2-2157 further provided in subsection (D) that localities "shall not require maintenance standards and requirements for alternative onsite sewage systems that exceed those allowed under or established by the State Board of Health pursuant to § 32.1-164."

Construing §§ 15.2-2157 and 15.2-2128 together, the use of alternative onsite sewage systems cannot be prohibited where sewers or sewerage disposal facilities are not available regardless of whether a master sewage plan has been adopted. "'[W]hen one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.'"

In your opinion request, you specifically refer to an ordinance enacted by a locality requiring a "special exception" in order to construct a privately owned alternative septic system. Because the granting of a special exception is discretionary, you note that it is possible for the locality to deny a developer's application for an alternative onsite sewage system despite the system fulfilling the requirements of § 15.2-2157(C). Pursuant to that section, the special exception requirement may be valid only if a public sewer is available and offered to the individual seeking to install the alternative onsite sewage system. The locality retains the general authority pursuant to § 15.2-2157(A) and § 15.2-2128 to regulate, inspect, and deny applications for onsite sewage systems where a public sewer or sewerage facility is available; but § 15.2-2157(C) clearly states that when "sewers or sewerage disposal systems are not available, a locality shall not prohibit the use of alternative onsite sewage systems . . . ." To require a special exception application for an alternative onsite sewer system that meets the conditions set forth in § 15.2-2157(C) effectively would give the local governing body the option to prohibit the system, a result not permitted by that subsection.

Further, § 15.2-2157(D) prohibits a locality from establishing maintenance standards and requirements for alternative onsite systems that exceed those established by the Virginia Department of Health. Therefore, if the "special exception" places standards or requirements on alternative systems that are more restrictive than those prescribed by the Virginia Department of Health, the ordinance would exceed the scope of the authority granted to localities pursuant to § 15.2-2157(D). The Commonwealth follows the Dillon Rule, which "provides that 'municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.'" Thus, "[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid."

Conclusion

Accordingly, it is my opinion that a Virginia locality cannot require an owner to obtain a special exception to a local zoning ordinance in order to install an alternative onsite sewage system if the conditions set forth in § 15.2-2157(C) exist, namely that (i) there is no sewer or sewerage disposal facility available and (ii) the alternative onsite sewage system has been approved by the Virginia Department of Health for use in the particular circumstances and conditions in which the proposed system is to be operating.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

A Virginia locality still may require that plans for an alternative onsite sewage system be submitted as part of its site plan review process to ensure that the necessary technical requirements have been met. See § 15.2-2286(A)(8) (Supp. 2010). Any such review, however, must not impose requirements that exceed those established for such systems in regulations of the State Board of Health. See § 15.2-2157(D). Nor may the effect of any such review be to prohibit an alternative onsite sewage system when the conditions set forth in § 15.2-2157(C) exist.