In the Orange County zoning case, Capelle v. Orange County, where a single "lot" extended into two different zones, the Virginia Supreme Court held that a haul road in the residential zone could not be valid, even as an accessory use to the mining in the same lot in the adjoining industrial zone, and not withstanding the general definition of "accessory use" in the zoning ordinance, which specifically referenced the term "lot."
Not that I've ever spent much time thinking about these issues, but this decision could have gone the other way. For one thing, the Court recognized that there was some ambiguity in the language about accessory uses for the whole ordinance and accessory uses for the residential zone. There's some authority that ambiguity in a zoning ordinance weighs against the restriction and in favor of the landowner's use. "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Chesapeake & O. Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965) "[E]ven though a statute be remedial, when, at the same time, it is also in derogation of common law, it must be strictly construed." Sellers v. Bles, 198 Va. 49, 53, 92 S.E.2d 486, 489 (1956) (citations omitted). As the circuit court noted in Town of Mt. Jackson v. Fawley, 53 Va. Cir. 49, 2000 WL 33340622 (Shenandoah County 2000), "[t]he rule which prevails in most jurisdictions, at least in the absence of any statute to the contrary, is that since zoning ordinances are in derogation of the common law and operate to deprive an owner of a use thereof which otherwise would be lawful, they should be strictly construed in favor of the property owner." 53 Va. Cir. at 53, 2000 WL 33340622 at *4 (citations omitted). Compare City of New Orleans v. JEB Properties, Inc., 609 So.2d 986, 989 (La. App. 1992) ("A zoning ordinance, being in derogation of the property rights of private ownership, must be construed to allow the least restrictive use of the property.").
In addition, if the Court's analysis is correct, then the general definition of the accessory use in the zoning ordinance is just complete surplusage, as the separate definition for each zone will be controlling. This conclusion would seem to "violate the settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary." Sansom v. Board of Sup'rs of Madison County, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999).
It is not a good thing if the Supreme Court is going to second guess zoning officials on the meaning of local ordinances, when the correct outcome is, to borrow another zoning term, "fairly debatable," and it appears that is what happened in this case.