MICHAEL W. COVEL, ET AL. v. TOWN OF VIENNA
Record No. 091343
Supreme Court of Virginia
June 10, 2010
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Stanley P. Klein, Judge
PRESENT: All the Justices
In this appeal we consider the validity of Vienna Town Code (VTC) §§ 18-258 to -280 (the “Historic Districts Ordinance“) and §§ 18-280.1 to -280.13 (the “WHHD Ordinance“), which create the Windover Heights Historic District (the “WHHD“). We also consider an appeal from the denial of a certificate of appropriateness under the WHHD Ordinance.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The circuit court decided this case after a bench trial; consequently, we state the facts in the light most favorable to the Town of Vienna, the prevailing party below. Virginia Home for Boys & Girls v. Phillips, 279 Va. 279, 282, 688 S.E.2d 284, 285 (2010).
This appeal arises from three consolidated cases involving six parcels of land in the WHHD. Michael Covel (“Michael“) owns two adjoining parcels, 130 Pleasant Street, N.W. and 346 Windover Avenue, N.W. Jerome and Johanna Covel own two parcels, 224 Walnut Lane, N.W. and 222 Lovers Lane, N.W. Matthew and Susan Stich own 200 Walnut Lane, N.W.1 PMY Associates (“PMY“) owns 210 Lawyers Road, N.W.
In February 2003, Michael applied to the Windover Heights Board of Review for a certificate of appropriateness (“COA“) to erect a fence on his parcels. His application stated his name, address, and telephone number, and the date. It incorporated a plat of the fence. Michael did not respond to any other questions on the application form, including those requesting a list of adjacent properties; proposed materials, colors, and finishes of the fence; and proposed landscaping changes, if any. The application omitted required dimensional plans showing existing and proposed buildings, structures, fences, or signs on the parcels and photographs of the proposed fence location.
The board of review considered Michael‘s COA application initially. At the board‘s hearing, he declined to supplement the information provided. The board then rejected his application as incomplete and informed him “more information is need[ed] to review for the application [but] that the Board has no objection to the building of a fence.” Michael appealed to the town council. He again declined to provide additional information. Following a hearing the council denied his application.
Michael then appealed to the circuit court. He challenged the denial of his COA application and sought a declaratory judgment that (a) the WHHD Ordinance was unconstitutionally vague, (b) the Historic Districts Ordinance was enacted in violation of
B. CASE NO. CH-2003-186629
In January 2003, before he applied for the COA, Michael requested that his Pleasant Street parcel be withdrawn from the WHHD. While Michael‘s COA application was pending before the board of review and his request to remove his Pleasant Street parcel from the WHHD was pending before the town council, the Landowners simultaneously requested that the other parcels they owned also be removed from the WHHD. The town council denied all these requests.
Thereafter the Landowners jointly filed a pleading in the circuit court in which they appealed from the denial of their requests to withdraw their parcels from the WHHD and sought declaratory judgment that the ordinances were invalid on the grounds Michael had asserted.3 No further proceedings relevant to this appeal were conducted prior to consolidation.
C. CASE NO. CL-2006-7105
In November 2005, while both Case Nos. CH-2003-184618 and CH-2003-186629 were pending before the circuit court, PMY requested that its parcel be removed from the WHHD. The town council denied that request, whereupon PMY appealed to the circuit court. Although the grounds for appeal were substantially identical to Case Nos. CH-2003-184618 and CH-2003-186629, PMY did not seek declaratory relief challenging the validity of the ordinances. No proceedings relevant to this appeal were entered prior to consolidation.
D. THE CONSOLIDATED PROCEEDING
In January 2008 the circuit court entered an order consolidating the cases with the agreement of the parties. That order expressly incorporated into the consolidated proceeding the court‘s earlier ruling in Case
II. ANALYSIS
A. APPEALS FROM THE DENIAL OF MICHAEL‘S COA AND THE LANDOWNERS’ AND PMY‘S REQUESTS FOR REMOVAL OF THEIR PARCELS FROM THE WHHD
Our review of the decision of a governing body relating to a historic district is limited by statute to “whether that decision is ‘arbitrary and constitutes an abuse of discretion,’ or ‘is contrary to law.‘” Norton v. City of Danville, 268 Va. 402, 407, 602 S.E.2d 126, 129 (2004) (quoting
Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of reasonableness. If evidence of reasonableness is sufficient to make the question fairly debatable, the ordinance “must be sustained“. If not, the evidence of unreasonableness defeats the presumption of reasonableness and the ordinance cannot be sustained.
Id. (quoting Board of Supervisors v. Snell Constr. Corp., 214 Va. 655, 659, 202 S.E.2d 889, 893 (1974)). An issue is “fairly debatable when the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions.” Id. (quoting Board of Supervisors v. Williams, 216 Va. 49, 58, 216 S.E.2d 33, 40 (1975)).
On appeal, neither the Landowners nor PMY point to any evidence in the record to rebut the presumption of validity. Rather, they assert that the Town‘s decision to deny Michael‘s COA application and their requests to remove their parcels from the WHHD are unreasonable, arbitrary, or capricious solely because the underlying ordinances are invalid. We previously have held that we may not consider whether the underlying ordinance is invalid when considering an appeal from a governing board‘s denial of a COA. Norton, 268 Va. at 407-08, 602 S.E.2d at 129 (“Norton‘s challenge to the underlying ordinance . . . is barred from consideration in judicial review of the city council‘s action concerning the certificate of appropriateness.“). The appropriate method for such challenges is by an action against the governing body. Id. at 408 n.4, 602 S.E.2d at 129 n.4 (citing Board of Zoning Appeals v. University Square Assocs., 246 Va. 290, 295 n.2, 435 S.E.2d 385, 388 n.2 (1993)).
Accordingly, we find no error in the judgment of the circuit court approving the Town‘s denial of Michael‘s COA and the requests to remove parcels from the WHHD. We now turn to the Landowners’ appeal from the dismissal of their claims for declaratory relief.4
B. THE ENACTMENT OF THE HISTORIC DISTRICTS AND WHHD ORDINANCES
Whether an ordinance has been enacted lawfully is a question of law we review de novo. Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 416 & n.9, 690 S.E.2d 84, 87 & n.9 (2010).
The Landowners assert that the Historic Districts Ordinance is invalid because it exceeds the authority delegated by the General Assembly, specifically because it refers only to an “area” rather than buildings or structures. They argue that the authorizing statute at the time the Town adopted the ordinance,
“[C]ourts apply the plain meaning of a statute unless the terms are ambiguous or applying the plain language would lead to an absurd result.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006) (citation omitted). A statute is ambiguous “if the text can be understood in more than one way or refers to two or more things simultaneously or when the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness.” Id. at 227 n.8, 623 S.E.2d at 926 n.8 (citation, internal quotation marks, and alterations omitted). An absurd result describes “situations in which the law would be internally inconsistent or otherwise incapable of operation.” Id. at 227 n.9, 623 S.E.2d at 926 n.9 (quotation marks omitted). When statutory language is unambiguous and does not lead to absurd results, “courts may not interpret the language in a way that effectively holds that the General Assembly did not mean what it actually expressed.” Hicks v. Mellis, 275 Va. 213, 218, 657 S.E.2d 142, 144 (2008).
The Landowners do not challenge the Historic Districts Ordinance as it first was enacted in 1975. Rather, they challenge the ordinance as it existed when the WHHD Ordinance was enacted in April 1979. At that time the authorizing statute provided:
The governing body of any county or municipality may adopt an ordinance setting forth the historic landmarks within the county or municipality as established by the Virginia Historic Landmarks Commission, and any other buildings or structures within the county or municipality having an important historic, architectural or cultural interest, and any historic areas within the county or municipality as defined by § 15.1-430(b) of the Code of Virginia, amending the existing zoning ordinance and delineating one or more historic districts adjacent to such landmarks, buildings and structures, or encompassing such historic areas; provided, that such amendment of the zoning ordinance and the establishment of such district or districts shall be in accordance with the provisions of article 8 (§ 15.1-486 et seq.), chapter 11, of Title 15.1 of the Code of Virginia. The governing body may provide for an architectural review board to administer such ordinance. Such ordinance may include a provision that no building or structure, including signs, shall be erected, reconstructed, altered or restored within any such historic district unless the same is approved by the architectural review board or, on appeal, by the governing body of such county or municipality as being architecturally compatible with the historic landmarks, buildings or structures therein.
Former
Considered together, these sections authorized a locality to create a historic district even if it contained no buildings or structures. While former
The differentiation in former
The Landowners also assert that the WHHD Ordinance is invalid because it was not enacted in the manner set forth by
The Town argues alternatively that the WHHD Ordinance is saved by
The Landowners’ reliance on
Whenever the regulations made under authority of this article require a greater width or size of yards, courts or other open spaces, require a lower height of building or less number of stories, require a greater percentage of lot to be left unoccupied or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this article shall govern. Whenever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts or other open spaces, require a lower height of building or a less number of stories, require a greater percentage of lot to be left unoccupied or impose other higher standards than are required by the regulations made under authority of this article, the provisions of such statute or local ordinance or regulation shall govern.
The Landowners argue that the words “other higher standards” embrace the higher standards imposed by
Similarly, Gas Mart is distinguishable. In that case we compared the general requirements for enacting ordinances set forth in
Unlike Gas Mart, this case does not require us to harmonize two conflicting statutes of equal dignity. This case involves
Accordingly, there is no error in the judgment of the circuit court upholding the ordinances as validly enacted.
C. THE VAGUENESS CHALLENGE TO THE WHHD ORDINANCE
The scope of the Landowners’ argument on this issue is limited by the procedural posture of their appeal. While they argue the WHHD Ordinance is unconstitutionally vague both facially and as applied, the circuit court dismissed Michael‘s facial challenge and subsequently dismissed the Landowners’ challenge in the consolidation order by incorporating its ruling on Michael‘s facial challenge.6 Neither Michael individually nor the Landowners collectively preserved any objection.7 Consequently, we will not consider their facial challenge on appeal. Rule 5:25.
The circuit court also determined that the Landowners lacked standing to bring an as-applied challenge to the WHHD Ordinance in Case No. CH-2003-186629 because the WHHD Ordinance sets forth standards by which the Town grants or denies COAs and the Landowners did not apply for COAs in that case. The Landowners did not assign error to that ruling so their as applied challenge in Case No. CH-2003-186629 is waived. Rule 5:17(c); see also Kondaurov v. Kerdasha, 271 Va. 646, 658, 629 S.E.2d 181, 188 (2006) (“[A] legal decision . . . unchallenged in a subsequent appeal when the opportunity to do so existed[] becomes the law of the case . . . and the parties are deemed to have waived the right to challenge that decision at a later time.“) Thus, all that remains before us is Michael‘s as applied challenge in Case No. CH-2003-184618.
Our review of the ordinance begins with the principle that duly enacted laws are presumed to be constitutional. Marshall v. Northern Virginia Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008); In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003); Yamaha Motor Corp., U.S.A. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2002); Finn v. Virginia Retirement System, 259 Va. 144, 153, 524 S.E.2d 125, 130 (2000). We are required to resolve any reasonable doubt concerning the constitutionality of a law in favor of its validity. In re Phillips, 265 Va. at 85-86, 574 S.E.2d at 272; Finn, 259 Va. at 153, 524 S.E.2d at 130; Walton v. Commonwealth, 255 Va. 422, 427, 497 S.E.2d 869, 872 (1998). Thus, if a statute or ordinance can be construed reasonably in a manner that will render its terms definite and sufficient, such an interpretation is required. See INS v. St. Cyr, 533 U.S. 289, 299-300 (2001); United States v. Harriss, 347 U.S. 612, 618 (1954); Pedersen v. City of Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979).
Tanner v. City of Va. Beach, 277 Va. 432, 438-39, 674 S.E.2d 848, 852 (2009).
“The constitutional prohibition against vagueness derives from the requirement of fair notice embodied in the Due Process Clause” and ensures that a law “be sufficiently precise and definite to give fair warning” of what it requires. Id. at 439, S.E.2d at 852; accord Volkswagen, 279 Va. at 337, 674 S.E.2d at 852 (a law “may survive a vagueness challenge if the language . . . makes clear what [it] prohibits and what is required in order to comply“). Its purpose is to safeguard against the arbitrary and discriminatory application of the law when a legislative act permits a subjective interpretation by those charged with its enforcement. Tanner, 277 Va. at 439, 674 S.E.2d at 852.
The WHHD Ordinance prohibits the erection of a fence without a COA.
This is not a case where the Town considered Michael‘s application and applied vague criteria subjectively to arrive at an arbitrary or discriminatory result. The Town could not have done so because it lacked the required information from Michael to make any decision based on the criteria set forth in
Consequently, we find that insofar as the WHHD Ordinance applied to Michael in Case No. CH-2003-184618, it required him to submit a complete application for the Town‘s review. The information required by the ordinance to render an application complete is not vague.
Accordingly, on these facts we find no error in the judgment of the circuit court dismissing Michael‘s as-applied challenge to the WHHD Ordinance.
For the reasons set forth above, we will affirm the judgment of the circuit court.
Affirmed.