Can a Virginia town ban office-based opioid treatment clinics through zoning, or only regulate where they can be located?

Subject

Whether the Town of Lebanon, Virginia may use its zoning powers to prohibit the establishment of office-based opioid treatment (OBOT) clinics anywhere within the Town, or whether it may instead only impose location and siting regulations.

Plain-English summary

Office-based opioid treatment, or OBOT, is an addiction medicine protocol in which licensed providers prescribe or dispense buprenorphine, suboxone, or similar medications in a clinical setting for people with opioid use disorder. The opinion states that state law permits the establishment of OBOT programs and clinics. Senator Pillion and Russell County Commonwealth's Attorney Stoots asked AG Miyares whether the Town of Lebanon could use its zoning powers to ban such clinics outright, and if not, whether it could regulate them through siting restrictions.

The AG split the question. On the total-ban question, no. Virginia is a Dillon Rule state, and a locality can only do what state law allows. Section 15.2-2280 gives localities zoning authority including the power to "prohibit" uses of land, but Virginia courts have long held that the power to prohibit is not absolute. If state law explicitly authorizes an activity, a locality cannot ban it through zoning. Wayside Restaurant v. City of Virginia Beach (1974) is the leading Virginia authority. The AG quoted prior office guidance: "If an activity is authorized by and conducted in compliance with state law, a Virginia locality cannot impose a ban on that otherwise legal activity." Because state law authorizes OBOT, the Town cannot ban OBOT.

On the regulate-by-zoning question, yes, within limits. State law does not preempt all local regulation of OBOT clinics; it just bars a total ban. The Town can adopt valid zoning that regulates OBOT clinics like other commercial or medical land uses, including reasonable location restrictions. The AG framed this as the standard "additional requirements" principle from King v. Cty. of Arlington (1954): a municipality can add to state regulation, so long as the local rule does not conflict.

The AG also flagged federal ADA risk. The Sixth, Ninth, Second, and Third Circuits have all held that zoning regulations targeting substance abuse treatment clinics can violate the ADA when the locality fails to provide a sufficient public health or safety justification. The Fourth Circuit (the federal circuit governing Virginia) has not squarely addressed the question in the public-health-justification context. The AG cited A Helping Hand, LLC v. Baltimore County (4th Cir. 2008) as the Fourth Circuit's closest treatment, but did not endorse a particular legal conclusion. Localities that adopt zoning restrictions on OBOT clinics should expect potential ADA litigation if the restrictions are not well-justified.

What this means for you

Virginia towns and counties considering OBOT zoning

The opinion holds that a locality cannot use its zoning powers to totally prohibit OBOT clinics anywhere within its boundaries, because state law authorizes OBOT and a total ban (whether express or by improper application of a facially valid ordinance) would conflict with state law and exceed the locality's delegated zoning authority. It also holds that nothing in state law bars a locality from otherwise regulating OBOT clinics through valid zoning, including reasonable restrictions on their location or siting.

OBOT treatment providers

For providers, the opinion's holding is that a Virginia locality lacks authority to ban OBOT clinics outright, while reasonable siting regulation remains permissible. On the federal side, the opinion notes only that several federal courts of appeals have found certain zoning regulations of substance abuse treatment clinics unlawfully discriminatory under the ADA where the government failed to provide a sufficient public health or safety justification, and that the Fourth Circuit has not directly addressed that question. The opinion does not advise providers on remedies or litigation strategy.

Recovery advocates and family members

The opinion is direct authority that a local total ban on OBOT clinics is not within a Virginia locality's zoning power because state law authorizes OBOT. On disability-rights protection, the opinion goes no further than noting the federal circuit decisions and the absence of a squarely-on-point Fourth Circuit ruling.

Local government attorneys

The opinion holds that the conflict-preemption limit bars a total ban but leaves room for valid zoning, including reasonable siting restrictions, so long as the local rule does not conflict with state law. It flags, without resolving, the ADA question: the cited federal decisions turned on whether a sufficient public health or safety justification supported the restriction, and the Fourth Circuit has not directly addressed regulation in that context.

Common questions

Q: Can my town require a special use permit for an OBOT clinic?
A: Probably yes, if the special use permit requirement is reasonable, applied consistently, and does not function as a de facto ban. Special use permits for medical and treatment facilities are common in Virginia zoning. The concerns arise if the SUP process is used to indefinitely deny applications or to impose discriminatory conditions.

Q: Can a town restrict OBOT clinics to industrial zones?
A: This would be highly suspect. Confining OBOT to industrial zones is a classic de facto ban pattern that has been struck down in federal court (see Innovative Health Systems v. White Plains). Medical office uses are typically permitted in commercial and mixed-use zones, and treating OBOT differently without strong justification triggers ADA scrutiny.

Q: What is the difference between OBOT and methadone clinics?
A: OBOT typically dispenses or prescribes buprenorphine, suboxone, or similar medications in a primary-care-like clinical setting. Methadone clinics (formally, opioid treatment programs or OTPs) operate under federal SAMHSA rules and typically dispense methadone on-site with daily visits. The zoning analysis is similar but the operational profiles differ. The opinion addresses OBOT specifically; methadone clinics may face additional layers of federal regulation.

Q: Does the ADA actually apply to zoning decisions?
A: Yes. Federal courts have consistently held that municipal zoning decisions are subject to ADA Title II (governmental services). A zoning denial that targets a protected class of people (people with disabilities, including substance use disorders) can violate the ADA.

Q: What did the Fourth Circuit say in A Helping Hand v. Baltimore County?
A: The Fourth Circuit addressed a methadone clinic zoning case in A Helping Hand and found certain procedural and analytical limitations. The opinion did not squarely address whether public health or safety justifications must be offered to support zoning restrictions on substance abuse treatment facilities. The AG flagged this gap; later Fourth Circuit cases may resolve it.

Q: Are buprenorphine and suboxone controlled substances?
A: Yes. They are Schedule III controlled substances, and prescribers need a DEA Schedule III registration. Until 2023, prescribers also needed a special "X-waiver" under federal law; the X-waiver requirement has since been eliminated, but state and DEA registration requirements remain.

Background and statutory framework

Virginia's Dillon Rule is the constitutional underpinning of this opinion. Local governments have only those powers expressly granted by the General Assembly or necessarily implied. The zoning enabling statute (§ 15.2-2280) grants broad authority but does not displace state law.

The opinion states that state law permits the establishment of OBOT programs and clinics. It does not quote the specific authorizing code or regulatory sections in the reproduced text, so they are not listed here as cited authority.

The Dillon Rule conflict-preemption principle the AG applied is well-developed in Virginia case law. The opinion's footnoted authorities include Wayside Restaurant, Hurt v. Caldwell, and Board of Supervisors v. Southland Corp. The principle is direct: if state law authorizes an activity, a local zoning ban conflicts with state law and is invalid. The locality retains authority to regulate (the "additional requirements" rule the opinion drew from King v. Arlington), but not to forbid.

On the ADA layer, the opinion cites decisions from the Sixth Circuit (MX Group), Ninth Circuit (Bay Addiction Research), Second Circuit (Innovative Health Systems), and Third Circuit (New Directions) holding that zoning targeting substance abuse treatment clinics can violate the ADA where the government fails to provide a sufficient public health or safety justification. The opinion notes the Fourth Circuit, which governs Virginia, has not directly addressed regulation in that context.

Citations and references

Statutes:

• Va. Code Ann. § 15.2-2280 (zoning enabling)

Virginia cases:

• Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231 (1974) (Virginia Supreme Court; local ban inconsistent with state authorization is invalid)
• King v. County of Arlington, 195 Va. 1084 (1954) (Virginia Supreme Court; locality may impose additional requirements absent conflict)
• Hurt v. Caldwell, 222 Va. 91 (1981) (Virginia Supreme Court; local zoning discretion)

Federal cases on ADA and substance abuse zoning:

• MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002)
• Bay Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999)
• Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997)
• New Directions Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir. 2007)
• A Helping Hand, LLC v. Baltimore County, 515 F.3d 356 (4th Cir. 2008)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-027-Pillion-Stoots-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

August 8, 2022

The Honorable Todd E. Pillion
Member, Senate of Virginia
851 French Moore Jr. Blvd., Suite 178
Abingdon, Virginia 24210

The Honorable Zack A. Stoots
Russell County Commonwealth's Attorney
Post Office Box 2110
Lebanon, VA 24266

Dear Gentlemen:

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

Issues Presented

You ask whether the Town of Lebanon may use its zoning powers to prohibit the establishment of clinics specializing in office-based opioid treatment anywhere within the Town. If not, you ask whether the Town may use its zoning powers to otherwise regulate such clinics, to include enacting restrictions on the siting or location of such establishments.

Background

Your request relates to clinics that specialize in office-based opioid treatment. Office-based opioid treatment ("OBOT") is a type of addiction treatment protocol for individuals with opioid use disorder. OBOT programs operate by dispensing or prescribing certain controlled substances (such as buprenorphine or suboxone) in a clinical setting for the treatment of opioid use disorder.

Applicable Law and Discussion

Your first question is whether the Town of Lebanon may use its zoning powers to prohibit the establishment of clinics specializing in office-based opioid treatment anywhere within the Town's boundaries.

The General Assembly has delegated to localities the authority to control land use within their boundaries through zoning. "This delegation of authority . . . is a delegation of the Commonwealth's police power to legislate" in the area of land use. It is well settled that localities have broad discretion in the enactment of zoning ordinances. The Supreme Court of Virginia has stated that "local bodies, because of their knowledge of local conditions and the needs of their individual communities, are allowed wide discretion in the enactment and amendment of zoning ordinances." Moreover, as legislative acts, zoning ordinances enacted by a locality are presumed to be valid, and a court will not substitute its judgment for that of the local governing body where the reasonableness of the ordinance is fairly debatable.

Nevertheless, the zoning powers of a locality are not unlimited, and a locality may not enact zoning restrictions in a manner that is inconsistent with state law. Although § 15.2-2280 of the Code of Virginia permits a locality, as a general matter, to "prohibit" uses of land, the power to prohibit land uses is not absolute. Where prohibition of a particular use throughout a locality would be inconsistent with state law, such a prohibition cannot be sustained. As this Office has previously held: "If an activity is authorized by and conducted in compliance with state law, a Virginia locality cannot impose a ban on that otherwise legal activity."

State law permits the establishment of office-based opioid treatment programs and clinics that specialize in office-based opioid treatment. Enactment of a total ban on such clinics would conflict with state law by prohibiting an activity state law has explicitly authorized. Accordingly, a ban on such clinics within the Town, whether express or by operation of improper application of a facially valid zoning ordinance, would exceed the locality's delegation of zoning authority.

While a total ban would exceed the locality's delegation of zoning authority, there is nothing in state law that would prohibit the Town of Lebanon from otherwise regulating clinics specializing in office-based opioid treatment through the valid use of its zoning powers, including the enactment of reasonable restrictions governing the location or siting of such clinics. "The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements[,] [s]o long as there is no conflict . . . ."

Federal law does not categorically prohibit zoning actions that regulate substance abuse treatment clinics. Several federal courts of appeals have held, however, that certain zoning regulations of substance abuse treatment clinics are unlawfully discriminatory under the Americans with Disabilities Act ("ADA") when the government fails to provide a sufficient public health or safety justification for the regulations. The Fourth Circuit has not directly addressed the question of regulation within the context of public health or safety justifications.

Conclusion

Accordingly, it is my opinion that the Town of Lebanon is not authorized to enact a total prohibition on clinics specializing in office-based opioid treatment within its boundaries. However, there is nothing in state law that would prohibit the Town from otherwise regulating clinics specializing in office-based opioid treatment through the valid use of its zoning powers, including the enactment of reasonable restrictions governing the location or siting of such clinics.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General