CVAS 2, LLC v. City of Fredericksburg ( 2015 )

Present: Lemons, C.J, Goodwyn, Millette, Mims, McClanahan, and
Powell, JJ., and Koontz, S.J.
CVAS 2, LLC
OPINION BY
v. Record No. 140505 JUSTICE LEROY F. MILLETTE, JR.
January 8, 2015
CITY OF FREDERICKSBURG
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
Gordon F. Willis, Judge
In this appeal we consider whether a circuit court had
authority to enter a decree of sale of real estate pursuant to
a locality's suit to collect delinquent real estate taxes and
delinquent special assessments.
I. Facts And Proceedings
The City of Fredericksburg (the "City") created the
Celebrate Virginia South Community Development Authority (the
"CDA") in 2000 by resolution, and ratified and amended that
resolution in 2005. CVAS 2, LLC owns real estate located
within the City's geographic area. The City has levied that
real estate with taxes, and the local governing body has levied
that real estate with special assessments for the CDA's
benefit. CVAS 2 has not paid all these taxes and special
assessments. CVAS 2 has outstanding real estate taxes dating
back to the 2012 fiscal year, and has outstanding special
assessments dating back to the 2009 fiscal year.
On June 13, 2013, the City brought suit against CVAS 2.
The City sought to have CVAS 2's real estate sold in order to
collect CVAS 2's outstanding payments for the delinquent real
estate taxes and special assessments. The City's complaint and
the City's motion for decree of sale cited Article 4 of Chapter
39 of Title 58.1 as the basis for its complaint and the
authority for the decree of sale. 1
CVAS 2 filed a motion to dismiss along with its amended
answer. The motion to dismiss asserted in relevant part that
the City failed to comply with Code § 58.1-3965, and therefore
its complaint could not result in a decree of sale to recover
the delinquent real estate taxes and special assessments.
After a hearing on the matter, the circuit court granted the
City's motion for the sale of CVAS 2's real estate. The court
subsequently entered a decree of sale, in which the court
(1) denied CVAS 2's motion to dismiss, (2) ordered that
CVAS 2's real estate be sold in gross to pay "the taxes,
penalties, interest, special assessments, fees, costs, and any
1
In its complaint, the City alleged that the action was
"brought pursuant to Virginia Code §§ 58.1-3965 and 58.1-
3965.2, et seq." In its motion for decree of sale, the City
asserted that the case "was initiated upon the filing of that
certain Complaint among the records of this Court citing all
notices required by Virginia Code § 58.1-3965, et seq., having
been complied with in this matter." Later in that motion, the
City specifically cited Code §§ 58.1-3965, 58.1-3965.2, and
58.1-3969.
2
liens whatever thereon" pursuant to Code §§ 15.2-5158, 58.1-
3965, and 58.1-3969, and (3) appointed a special commissioner
to oversee the sale of CVAS 2's real estate and to disburse the
funds from that sale.
CVAS 2 timely filed a petition for appeal with this Court.
We granted CVAS 2's single assignment of error:
1. The trial court erred in its construction of
Virginia Code §§ 15.2-5158 and 58.1-3965(A) by
ordering the sale of CVAS 2's [real estate] when taxes
are less than two (2) years delinquent.
II. Discussion
A. Standard Of Review
Whether this Court has jurisdiction of an appeal is a
question of law we review de novo. See Henderson v. Ayres &
Hartnett, P.C., 285 Va. 556, 563, 740 S.E.2d 518, 521 (2013).
Issues of statutory interpretation are questions of law we
review de novo. Commonwealth v. Herring, 288 Va. 59, 66, 758
S.E.2d 225, 229 (2014).
B. The City's Motion To Dismiss CVAS 2's Appeal To This Court
Pursuant to Rule 5:4, the City filed a motion to dismiss
CVAS 2's appeal to this Court on the basis that the circuit
court's entry of the decree of sale was not a final order
giving rise to this Court's jurisdiction under Code § 8.01-
670(A). It is a familiar principle that a "court always has
jurisdiction to determine its own jurisdiction." Rutter v.
3
Oakwood Living Ctrs. of Va., Inc., 282 Va. 4, 13, 710 S.E.2d
460, 464 (2011) (collecting cases) (internal quotation marks
omitted).
Final orders, as envisioned by Code § 8.01-670(A), are not
the only types of orders giving rise to this Court's
jurisdiction. "[F]or [this] Court to have jurisdiction of [an]
appeal, the order from which [a petitioner] appealed must be
either a final order or an interlocutory order from which an
appeal is statutorily authorized." Comcast of Chesterfield
Cnty., Inc. v. Board of Supervisors, 277 Va. 293, 300, 672
S.E.2d 870, 873 (2009). Title 8.01 of the Code of Virginia
establishes civil remedies and procedures. The General
Assembly has provided that, except in cases involving an
administrative agency, the Virginia Workers' Compensation
Commission, or domestic relations, which would vest
jurisdiction in the Court of Appeals, this Court has
jurisdiction of an appeal from an interlocutory decree or order
"in any case on an equitable claim" in three enumerated
situations, one of which applies here. Code § 8.01-670(B)(2);
see also Code § 17.1-405.
The decree of sale from which CVAS 2 appeals is an
interlocutory decree in a case on an equitable claim, even
though that claim is statutory in nature. The General Assembly
has the power to define the statutory rights it creates to be
4
of a legal or equitable nature. 2 See, e.g., Campbell v. Harmon,
271 Va. 590, 597, 628 S.E.2d 308, 311 (2006) (Code § 8.01-31
permits the beneficiary of a trust to file an "accounting in
equity" against the trustee); City of Portsmouth v. City of
Chesapeake, 232 Va. 158, 164, 349 S.E.2d 351, 354 (1986)
(former Code § 15.1-1026 et seq., now Code § 15.2-3100 et seq.,
allowing cities to file suit to determine the boundary lines
between them, conferred "only legal, not equitable, rights").
The City filed suit against CVAS 2 to sell CVAS 2's real estate
for delinquent real estate taxes and special assessments. The
statutory scheme upon which the City filed suit, and the
authority relied upon by the circuit court to enter the decree
of sale, was Article 4 of Chapter 39 of Title 58.1. The
General Assembly explained that "[p]roceedings under this
article for . . . the sale of real estate on which county,
city, or town taxes are delinquent shall be by bill in equity."
Code § 58.1-3967 (emphasis added).
2
"There shall be one form of civil case, known as a civil
action." Rule 3:1. This Rule "effectively abolish[es] the
division of trial court dockets into legal and equity
proceedings." Virginia Elec. & Power Co. v. Norfolk S. Railway
Co., 278 Va. 444, 454 n.3, 683 S.E.2d 517, 522 n.3 (2009).
Despite this change to how pleadings are labeled and filed,
this Rule does not abolish the existence of, and distinction
between, legal and equitable claims. Rule 3:1; VEPCO, 278 Va.
at 454 n.3, 683 S.E.2d at 522 n.3.
5
As the City's case is a "case on an equitable claim" and
does not involve an administrative agency, the Virginia
Workers' Compensation Commission, or domestic relations, this
Court has jurisdiction to resolve this appeal from the
interlocutory order "[r]equiring . . . title of property to be
changed." Code § 8.01-670(B)(2). We therefore deny the City's
motion to dismiss CVAS 2's appeal.
C. Localities, Community Development Authorities, And The
Imposition Of Taxes And Assessments On Real Estate
This appeal requires us to address how different
governmental entities may levy and collect certain taxes and
assessments on real estate. In particular, five statutory
provisions allowing for such action are implicated in this
dispute. "Because we do not read statutes in isolation, and
because statutes dealing with a specific subject must be
construed together in order to arrive at the object sought to
be accomplished," we first review these relevant statutes so
that we can more readily resolve the issues on appeal. Bailey
v. Loudoun Cnty. Sheriff's Office, 288 Va. 159, 169-70, 762
S.E.2d 763, 765 (2014) (internal quotation marks omitted).
1. How A Locality May Levy And Collect Taxes On Real Estate
In compliance with the Constitution of Virginia, the
General Assembly directs that certain real estate "shall be
assessed for local taxation in accordance with the provisions
6
of [Chapter 32 of Title 58.1, Code § 58.1-3200 et seq.,] and
other provisions of law." Code § 58.1-3200; see also Va.
Const. art. X, § 4. In Code § 58.1-3965, the General Assembly
established the method for a locality to collect delinquent
taxes by selling the subject real estate. 3 In relevant part,
the "officer charged with the duty of collecting taxes for the
locality" must abide by the following:
When any taxes on any real estate in a locality are
delinquent on December 31 following the second
anniversary of the date on which such taxes have
become due . . . such real estate may be sold for the
purpose of collecting all delinquent taxes on such
property.
Code § 58.1-3965(A). This provision contains two aspects
important to this appeal. First, the locality may not bring
suit to collect delinquent taxes on real estate until the
December 31 two years after the real estate taxes became due.
Second, the suit to collect such delinquent taxes may be
enforced through the sale of the real estate upon which the
delinquent taxes were levied.
Also, the General Assembly allows a city to reduce the two
year delay in Code § 58.1-3965(A) to a single year. That is, a
city – but not a county or town - may pass an ordinance
allowing it to file suit, for the purposes of having real
3
A "[l]ocality" may be either a county, city, or town.
Code § 15.2-102.
7
estate sold to collect delinquent taxes on such property, on
the December 31 one year after such outstanding taxes become
due. Code § 58.1-3965.1.
2. How A Locality May Levy And Collect Special Taxes On
Behalf Of A Community Development Authority
Localities may, "by ordinance or resolution[,] create a
community development authority." Code § 15.2-5155(A). The
General Assembly has provided numerous powers to any community
development authority created by a locality. See Code §§ 15.2-
5114; 15.2-5158. In order "to finance the services and
facilities provided by the authority," one such power is the
ability to "[r]equest annually that the locality levy and
collect a special tax on taxable real property within the
development authority's jurisdiction." Code § 15.2-5158(A)(3).
Thus, the community development authority may not levy and
collect the special tax itself, but may request that the
locality do so on its behalf. Then, once the locality receives
the revenues from the special tax, those revenues are directed
to "be paid over to the development authority for its use
pursuant to this chapter." Id.
The General Assembly has established the following method
for a locality to collect such special taxes:
8
The special taxes shall be collected at the same time
and in the same manner as the locality's taxes are
collected, and the proceeds shall be kept in a
separate account and be used only for the purposes
provided in this chapter.
Id. The parties dispute how the statutory phrase "at the same
time and in the same manner" operates. "As this statutory
language is neither ambiguous nor absurd, we conclude that it
means exactly what it says." Bailey, 288 Va. at 173, 762
S.E.2d at 768; see also Sheppard v. Junes, 287 Va. 397, 403,
756 S.E.2d 409, 411 (2014).
"[I]n the same manner" means that a special tax must be
collected in accordance with the procedural provisions that
govern the collection of "the locality's taxes." That is, how
a special tax is collected is determined by the manner in which
"the locality's taxes" are collected. Code § 15.2-5158(A)(3).
"[A]t the same time" must mean something different than
"in the same manner." To reason otherwise contravenes our
repeated admonition of making any portion of a statute
meaningless or surplusage. See, e.g., Idoux v. Helou, 279 Va.
548, 554, 691 S.E.2d 773, 776 (2010). The preposition "at" in
this phrase is "used as a function word to indicate [a]
position in time." Webster's Third New International
Dictionary 136 (1993). The position in time to which this
phrase relates is when the locality collects "the locality's
taxes." That is, when a special tax is collected is determined
9
by the time when "the locality's taxes" are collected. Code
§ 15.2-5158(A)(3).
The General Assembly coupled the collection of special
taxes under Code § 15.2-5158(A)(3) to the collection of "the
locality's taxes." This general phrase – "locality's taxes" –
does not specify what type of tax the locality must use as a
prerequisite to collect special taxes, and therefore the
locality may choose to what tax it wishes to attach the
collection of special taxes. Then, whatever tax the locality
chooses to be the prerequisite for collecting special taxes in
any given situation will govern the "at the same time and in
the same manner" analysis.
This case is illustrative. The City sought to collect
delinquent real estate taxes as the type of "locality's taxes"
serving as the prerequisite necessary to collect delinquent
special taxes. Delinquent real estate taxes are collected
pursuant to Code § 58.1-3965. Thus, our analysis of the
statutory phrase "at the same time and in the same manner" in
Code § 15.2-5158(A)(3) is necessarily related to Code § 58.1-
3965 for purposes of the City's appeal. Consequently, when a
Code § 15.2-5158(A)(3) special tax is collected ("at the same
time") is dictated by Code § 58.1-3965, so that the City can
collect delinquent special taxes only at the time when the City
properly seeks to collect delinquent real estate taxes under
10
Code § 58.1-3965. Further, how a Code § 15.2-5158(A)(3)
special tax is collected ("in the same manner") is governed by
Code § 58.1-3965, thereby allowing, in pertinent part, the City
to sell the subject real estate to recover delinquent special
taxes. See Code § 58.1-3965(A).
3. How A Local Governing Body May Levy And Collect A Special
Assessment On Behalf Of A Community Development Authority
As part of the powers the General Assembly afforded to all
community development authorities, a development authority has
the ability to have a "special assessment . . . imposed by the
local governing body" in order to "[f]inance the services and
facilities [the development authority] provides to abutting
property within the district." Code § 15.2-5158(A)(5). As
with special taxes, the community development authority does
not have the power to levy and collect the special assessment
itself. Instead, the local governing body must levy and
collect such a special assessment on the development
authority's behalf. 4 Then, once the locality receives the
revenues from the special assessments "which the locality
elects to impose upon [a development authority's] request,"
those revenues are directed to "be paid over to the development
authority for its use under this chapter." Id.
4
The "[g]overning body" of the locality may be either "the
board of supervisors of a county, council of a city, or council
of a town." Code § 15.2-102.
11
The General Assembly has established the following method
for a local governing body to collect such special assessments:
Notwithstanding any other provision of law, any
assessments made pursuant to this section may be made
effective as a lien upon a specified date, by
ordinance, but such assessments may not thereafter be
modified in a manner inconsistent with the terms of
the debt instruments financing the improvements.
Id. Unlike a special tax for the benefit of a community
development authority under Code § 15.2-5158(A)(3), this
provision provides that a special assessment for the benefit of
a community development authority must be collected as a lien.
Code § 15.2-5158(A)(5).
Moreover, the method in which a delinquent special
assessment is collected differs significantly from the method
in which a delinquent special tax is collected. Unlike Code
§ 15.2-5158(A)(3), which relates to special taxes, Code § 15.2-
5158(A)(5), which relates to special assessments, contains no
reference to being collected at the same time and in the same
manner as the locality's taxes are collected. Thus, unlike a
special tax, a special assessment "may be made effective as a
lien upon a specified date, by ordinance." Code § 15.2-
5158(A)(5). There is no requirement that the special
assessment must be collected when the locality's taxes are
collected, or that it be collected under the procedures
governing the locality's collection of taxes. Consequently, a
12
special assessment need not be collected "at the same time and
in the same manner" as another type of locality's taxes,
including, for example, real estate taxes under Code § 58.1-
3965. Simultaneously, however, a suit to collect delinquent
special assessments under Code § 15.2-5158(A)(5) lacks the
authority set forth in Code § 58.1-3965(A) to sell the real
estate in order to collect the delinquent special assessment.
4. Additional Methods To Collect Special Taxes And Special
Assessments
Finally, the General Assembly has provided additional
methods to expedite the collection of special taxes or special
assessments:
In addition to the authority provided by
subsection A of § 58.1-3965, a locality may provide,
as part of any ordinance[:]
(ii) to levy special taxes or special assessments on
real property within any district covered by the
community development authority or on abutting
property within the district, that proceedings be
instituted to sell any such real property when any
special tax or special assessment described under
subdivision A 3 or A 5 of [Code] § 15.2-5158 imposed
on the property is delinquent on the first anniversary
of the date on which the tax or assessment became due.
Code § 58.1-3965.2 (paragraph break added). This provision
permits localities to expedite the collection of delinquent
obligations by shortening the period of delinquency required
before selling the subject real estate from two years to one
year. Thus, the locality may provide "as part of any
13
ordinance" that a suit to collect delinquent special taxes or
special assessments may result in real estate being sold so
long as the suit is filed on or after one year from when the
special tax or special assessment became due. Code § 58.1-
3965.2(ii) (emphasis added).
Such an ordinance, as pertaining to special taxes, would
separate the collection of special taxes from the default
requirement under Code § 15.2-5158(A)(3) that the locality's
collection of special taxes must be "at the same time" when the
locality collects another type of "locality's taxes." Code
§ 58.1-3965.2(ii).
Additionally, such an ordinance, as pertaining to special
assessments, would bring the locality's collection of special
assessments under the umbrella of Article 4 of Chapter 39 of
Title 58.1. Such an ordinance would authorize the sale of the
subject real estate to collect a special assessment under Code
§ 58.1-3965, which, as addressed, is not permitted by the plain
language of Code § 15.2-5158(A)(5). Code § 58.1-3965.2(ii).
D. The City's Suit Against CVAS 2: Collection Of Delinquent
Real Estate Taxes
Having laid out the statutory framework relevant to the
City's suit, we now turn to whether the circuit court erred in
entering the decree of sale.
14
The City's suit against CVAS 2 sought, in part, collection
of delinquent real estate taxes. As discussed, the sale of
real estate for the collection of delinquent real estate taxes
by the City is governed by Code § 58.1-3965. The earliest a
suit can be brought to collect outstanding real estate taxes is
the December 31 two years following the anniversary of when the
taxes became due. Code § 58.1-3965(A). The City has not
passed an ordinance under Code § 58.1-3965.1 reducing this time
requirement to the December 31 one year following the
anniversary of when the taxes became due.
CVAS 2's delinquent real estate taxes date back to the
2012 fiscal year. The City's local ordinances provide that its
fiscal year ends on June 30, and that all real estate taxes for
any given fiscal year are due in two installment payments, the
first on November 15 and the second on May 15. Fredericksburg
City Code §§ 2-491; 70-93. The City has further explained to
this Court that its fiscal year ends prior to the end of the
calendar year, so that the 2012 fiscal year began on July 1,
2011 and ended on June 30, 2012. Thus, CVAS 2's first
delinquent installment payment on its 2012 taxes occurred on
November 15, 2011.
The December 31 two years following the anniversary of
November 15, 2011 is December 31, 2013. Thus, the City's suit,
filed on June 13, 2013, to collect those delinquent real estate
15
taxes was premature and requires dismissal of the City's
complaint as to the delinquent real estate taxes. See Code
§ 58.1-3965(A).
A suit to sell real estate to collect delinquent taxes on
that property is purely a creature of statute. See Lester
Group, Inc. v. Little, 238 Va. 54, 57, 381 S.E.2d 3, 5 (1989)
("The power of a governmental entity to sell land for non-
payment of taxes is not a common law power, but arises entirely
from statute." (internal quotation marks and citation
omitted)). A party's ability to "enforce" such a statutory
right "rest[s] upon compliance with the statute." Isle of
Wight Materials Co. v. Cowling Bros., 246 Va. 103, 105, 431
S.E.2d 42, 43 (1993) (internal quotation marks and citation
omitted). Because the City did not strictly comply with the
time period in Code § 58.1-3965(A) allowing for such a suit to
be brought, the City had no authority under that statute to
bring suit to sell CVAS 2's real estate as a means to collect
delinquent real estate taxes dating back to November 15, 2011.
See Lester Group, 238 Va. at 57, 381 S.E.2d at 5.
E. The City's Suit Against CVAS 2: Collection Of Delinquent
"Special Assessments"
The City's suit against CVAS 2 also sought, in part,
collection of delinquent "special assessments."
16
1. Special Taxes Are Different From Special Assessments
Despite the City and CVAS 2 repeatedly acknowledging that
the City was seeking to collect special assessments, both
parties argued before the circuit court whether CVAS 2's real
estate could be sold under Code § 15.2-5158(A)(3), which
governs collection of delinquent special taxes, as opposed to
Code § 15.2-5158(A)(5), which governs collection of delinquent
special assessments. And the circuit court, citing Code
§ 15.2-5158 in support of its authority to enter the decree of
sale, necessarily relied upon Code § 15.2-5158(A)(3) because,
as previously addressed, Code § 15.2-5158(A)(5) does not
provide authority to sell real estate.
This confusion between special taxes and special
assessments, and what statutory provisions are applicable to
each type of obligation, persists on appeal. In briefs
submitted to this Court, the City now refers to the delinquent
special assessments as "special tax assessments," and argues
that Code § 15.2-5158(A)(3) remains the governing statute. For
its part, CVAS 2 has resisted this change in nomenclature and
continues to assert in briefs submitted to this Court that the
special assessments were indeed special assessments and not
17
special taxes, but has corrected its error and now argues that
special assessments are governed by Code § 15.2-5158(A)(5). 5
During oral argument, the City assured this Court that no
practical difference exists between special taxes and special
assessments. We disagree. The General Assembly gave these
words particular and fixed meanings in the statutory scheme
pertaining to community development authorities, and we must
give different effect to these different statutory provisions.
PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286
Va. 174, 183, 747 S.E.2d 826, 831 (2013).
Longstanding jurisprudence has distinguished between
special taxes and special assessments. See 1 William Herbert
Page & Paul Jones, A Treatise on the Law of Taxation by Local
and Special Assessments § 4, at 4 (1909) (defining a special
assessment, when used in this context, as "a charge upon
5
Of course, judicial estoppel prohibits a party "from
taking inconsistent positions within a single action." Lofton
Ridge, LLC v. Norfolk S. Railway, 268 Va. 377, 381-82, 601
S.E.2d 648, 650-51 (2004). However, a party cannot concede the
law. Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498
(1990). Further, a party's mistaken belief as to what statutes
govern a particular set of facts does not bind this Court on
appeal, nor does such an error prohibit this Court from
establishing how a statutory scheme correctly operates or from
applying the correct statutes to the set of facts before it.
See Virginia Marine Res. Comm'n v. Chincoteague Inn, 287 Va.
371, 388-89, 757 S.E.2d 1, 10 (2014); Wright v. Commonwealth,
278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009); see also,
e.g., PS Business Parks, L.P. v. Deutsch & Gilden, Inc., 287
Va. 410, 420-22, 758 S.E.2d 508, 513-14 (2014).
18
property, imposed by proper authority, usually in return for
special benefits conferred upon such property by an improvement
of a public character for the expense of making which the
assessment is levied"); id. § 7, at 11-13 (further defining
what constitutes a special assessment); id. § 35, at 59-62
(distinguishing a tax, which is a "recurring charge" that "is
levied for the purpose of raising revenue for paying the
expenses of the government," from a special assessment, which
is only levied "occasionally" and for purposes of paying for
the "special benefits conferred upon" the property owner); id.
§ 50, at 86 (noting that one definition of "special tax" is
"that of a tax analogous to the general tax, but devoted to a
specific purpose and not to be used for the general expenses of
the public corporation which levies it").
In the context of community development authorities, the
General Assembly has acted in accordance with this longstanding
law by distinguishing between a special tax and a special
assessment. On the one hand, a special tax must come as an
"annual[]" "[r]equest" by the community development authority
for the locality to "levy and collect" that tax so as to
"finance the services and facilities provided by" the
development authority. Code § 15.2-5158(A)(3). On the other
hand, a special assessment arises from "improvements" to "the
services and facilities" provided "to abutting property within
19
the district" under the development authority's oversight, and
must comply with "the laws pertaining to assessments under
Article 2 ([Code §] 15.2-2404 et seq.)" as well as other
expressly detailed requirements. Code § 15.2-5158(A)(5). 6
6
Justice McClanahan correctly observes that Code § 15.2-
5158(A)(5) mentions both "assessments" and "taxes." However, a
close reading of this statutory provision reveals that the
reference to "taxes" is inadvertent and does not alter our
conclusion that special assessments under Code § 15.2-
5158(A)(5) are treated differently from special taxes under
Code § 15.2-5158(A)(3) and real estate taxes under Code § 58.1-
3965.
Code § 15.2-5158(A)(5) contains five sentences. The
first, third, fourth, and fifth sentences are all substantive
provisions and provide, respectively: that every community
development authority has the power to request imposition of
special assessments; how special assessments shall be made
effective; how special assessments shall be implemented; and
how revenues collected from special assessments shall be
disposed. In each of these sentences, the General Assembly
uses only the terms "special assessment" or "assessments."
The second sentence of Code § 15.2-5158(A)(5) is not
substantive, but establishes certain requirements for "[a]ll
assessments [imposed] pursuant to this section." (Emphasis
added.) As part of those requirements, the second sentence
first references "the laws pertaining to assessments under
Article 2 ([Code] § 15.2-2404 et seq.) of Chapter 24," and then
provides three additional requirements. In setting forth these
three additional requirements, Code § 15.2-5158(A)(5) refers to
"taxes or assessments."
This passing reference to "taxes" in the second sentence
does not alter the scope of Code § 15.2-5158(A)(5). The second
sentence provides requirements only for "[a]ll assessments,"
not taxes, and does not modify the fact that the other four
sentences apply only to assessments. Further, the reference to
"taxes" is inadvertent. The first phrase of the second
sentence invokes Article 2 of Chapter 24, Code § 15.2-2404 et
seq. In turn, Article 2 of Chapter 24 pertains to taxes and
assessments for local improvements as imposed by localities,
unrelated to community development associations. In
incorporating the requirements of Article 2 of Chapter 24 to
20
2. Determining Whether An Obligation Is A Special Tax Or
Special Assessment Is A Mixed Question Of Law And Fact
Determining whether a particular obligation levied against
real estate is a special tax or a special assessment under the
Code requires evaluating the specific obligation imposed
relative to the different statutory definitions. Recognizing
this as the correct analysis, we respectfully but necessarily
disagree with our colleagues in concurrence and dissent who
contend that the City's resolution governing the CDA answers
apply only to special assessments imposed under Code § 15.2-
5158(A)(5), the General Assembly inadvertently included the
"tax" term from Article 2 of Chapter 24 when setting forth the
three additional requirements that special assessments must
satisfy when imposed pursuant to Code § 15.2-5158(A)(5).
Thus, Code § 15.2-5158(A)(5) only governs special
assessments requested by a community development authority.
Code § 15.2-5158(A)(3) only governs special taxes requested by
a community development authority. Code § 58.1-3965 only
governs taxes on real estate. These three provisions govern
three different types of obligations. Although the dividing
line between these types of obligations is not always clear or
defined with the most precise language, the General Assembly
has enacted a scheme whereby different obligations are governed
by different procedures. This is an exceptional situation in
which we must recognize that the word "tax," as used in a
portion of a single sentence of Code § 15.2-5158(A)(5), appears
to be a legislative scrivener's error. Our holding is
necessary to avoid the absurd result of dismantling the General
Assembly's carefully crafted statutory scheme distinguishing
between these different obligations. Idoux, 279 Va. at 554,
691 S.E.2d at 776 ("[N]o part [of a statute] will be treated as
meaningless unless absolutely necessary." (emphasis added));
Covel v. Town of Vienna, 280 Va. 151, 158, 694 S.E.2d 609, 614
(2010) (construing a statute so that the law is "incapable of
operation" is an absurd result (internal quotation marks
omitted)); see also Johnson v. United States, 529 U.S. 694,
723-24 (2000) (Scalia, J., dissenting).
21
the question. To the extent a locality's resolution or
ordinance purports to limit a community development authority's
powers, such a fact only addresses whether the relevant
governmental authority acted within its scope of authority when
levying a particular obligation. It does not answer the wholly
separate question of what that obligation is under the Code.
As such, whether an obligation is a special tax or a
special assessment for purposes of the Code is a mixed question
of law and fact. See Smyth County Cmty. Hosp. v. Town of
Marion, 259 Va. 328, 336, 527 S.E.2d 401, 405 (2000). The
factual predicate for such a determination in this case is
poorly developed. The circuit court – understandably, in light
of the parties' confusion of the issue – failed to make factual
findings germane to whether the obligation in question is a
special tax or a special assessment. Moreover, the parties did
not brief the issue before the circuit court, and provided only
a cursory discussion of the issue before this Court.
Considering the insufficiency of the record in this
regard, and the parties' continuing disagreement about this
fundamental aspect of the case, we decline to make a factual
finding ourselves. See Bailey, 288 Va. at 181, 762 S.E.2d at
773 ("[W]e are a court of review, not of first view." (internal
quotation marks and citation omitted)). However, we need not
decide the issue, nor must we remand the case to develop such
22
factual findings, because the circuit court erred as a matter
of law in entering the decree of sale regardless of whether the
delinquent special assessments are categorized as special taxes
or special assessments under the Code. See D.R. Horton, Inc.
v. Board of Supervisors, 285 Va. 467, 471-75, 737 S.E.2d 886,
888-90 (2013) (addressing each of the appellant's alternative
legal arguments as applied to the same set of facts).
3. Analysis Of The "Special Assessments" As Special Taxes
The collection of a delinquent "special tax" on behalf of
a community development authority is governed by Code § 15.2-
5158(A)(3). A suit to collect outstanding special taxes must
be brought "at the same time" as when "the locality's taxes are
collected." Id.
The City chose delinquent real estate taxes to be the type
of "locality's taxes" to which the collection of these
particular delinquent special taxes was coupled by operation of
Code § 15.2-5158(A)(3). Consequently, when those special taxes
may be collected is dictated by when the City could collect
such delinquent real estate taxes. And as established, the
City could not bring suit under Code § 58.1-3965(A) to sell
CVAS 2's real estate in order to collect the delinquent real
estate taxes, which dated back to November 15, 2011, until
December 31, 2013. Further, the City has not adopted an
ordinance pursuant to Code § 58.1-3965.2(ii) allowing for it to
23
expedite and collect delinquent special taxes independent from
its collection of another type of delinquent "locality's
taxes." Thus, the City could not bring suit on June 13, 2013
to collect the delinquent special assessments dating back to
the 2009 fiscal year, even if they are in fact special taxes
under the Code. 7
A suit to sell real estate to collect special taxes on
that property is purely a creature of statute. See Lester
Group, 238 Va. at 57, 381 S.E.2d at 5. A party's ability to
"enforce" such a statutory right "rest[s] upon compliance with
the statute." Isle of Wight Materials, 246 Va. at 105, 431
S.E.2d at 43 (internal quotation marks and citation omitted).
Thus, because the City did not strictly comply with the time
period in Code §§ 15.2-5158(A)(3) and 58.1-3965(A) allowing for
7
Justice Powell contends that the delinquent special taxes
could have been collected under Code § 58.1-3965, which is a
general provision governing "any taxes on any real estate," as
a matter of course. This reading unnecessarily renders
meaningless the "at the same time and in the same manner"
language of Code § 15.2-5158(A)(3), which is a specific
provision governing the collection of special taxes.
Absent an ordinance adopted pursuant to Code § 58.1-
3965.2(ii), a special tax can only be collected "at the same
time" when another type of "locality's tax[]" is collected.
Code § 15.2-5158(A)(3). A special tax cannot be collected
independent of collecting another "locality's tax[]" simply by
invoking Code § 58.1-3965. See Idoux, 279 Va. at 554, 691
S.E.2d at 776 ("[N]o part [of a statute] will be treated as
meaningless unless absolutely necessary."); Peerless Ins. Co.
v. County of Fairfax, 274 Va. 236, 244, 645 S.E.2d 478, 483
(2007) (holding that specific statutes prevail over general
statutes).
24
such a suit to be brought, the City had no authority under
those statutes to bring suit to sell CVAS 2's real estate as a
means to collect delinquent special taxes. See Lester Group,
238 Va. at 57, 381 S.E.2d at 5.
4. Analysis Of The "Special Assessments" As Special
Assessments
The collection of a delinquent "special assessment" on
behalf of a community development authority is governed by Code
§ 15.2-5158(A)(5). Delinquent special assessments may be
collected as a lien upon the property if the locality has
passed an ordinance allowing for special assessments to be made
effective in such a manner. Id. As discussed, however, the
plain language of Code § 15.2-5158(A)(5) does not invoke the
authority under Code § 58.1-3965(A) to sell real estate subject
to a special assessment. And the City has not adopted an
ordinance pursuant to Code § 58.1-3965.2(ii) allowing for it to
file suit to have CVAS 2's real estate sold to collect
delinquent special assessments pursuant to Article 4 of Chapter
39 of Title 58.1, Code § 58.1-3965 et seq.
A suit to collect delinquent special assessments is purely
a creature of statute. See Lester Group, 238 Va. at 57, 381
S.E.2d at 5. A party's ability to "enforce" such a statutory
right "rest[s] upon compliance with the statute." Isle of
Wight Materials, 246 Va. at 105, 431 S.E.2d at 43 (internal
25
quotation marks and citation omitted). The City, being the
party asserting the statutory right which has been challenged,
has the burden of proving compliance with the statutory scheme.
See Moore v. Commonwealth, 155 Va. 1, 15, 155 S.E. 635, 639
(1930); see also, e.g., Glasser & Glasser, PLC v. Jack Bays,
Inc., 285 Va. 358, 369-71, 741 S.E.2d 599, 605 (2013) (party
asserting the statutory right to enforce a mechanic's lien has
the burden of naming all necessary parties so as to comply with
the statutory scheme).
CVAS 2 challenged the City's ability to file suit to
collect the delinquent special assessments, and the City failed
to establish that it complied with the statutes actually
pertaining to the collection of special assessments. Because
the City has not shown that it has strictly complied with Code
§§ 15.2-5158(A)(5) or 58.1-3965.2 allowing for it to bring suit
to collect delinquent special assessments, the City has not
established authority under those statutes to bring suit to
sell CVAS 2's real estate as a means to collect the delinquent
special assessments. See Lester Group, 238 Va. at 57, 381
S.E.2d at 5.
III. Conclusion
The General Assembly has established a comprehensive
statutory scheme affording localities, local governing bodies,
and community development associations the ability to levy and
26
collect real estate taxes, special taxes, and special
assessments owed to a governmental entity by a property owner,
including the right to sell the subject real estate. However,
the governmental authority must act pursuant to, and in
compliance with, that statutory scheme in order to bring suit
to collect such delinquent obligations.
We reverse the circuit court's judgment because the City
failed to act in compliance with the relevant statutory
provisions. With the City having no basis for relief under
those statutes, the circuit court lacked authority to order the
sale of CVAS 2's real estate. We will vacate the decree of
sale and dismiss the City's suit against CVAS 2.
Reversed, vacated, and dismissed.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
While I agree with the majority opinion on the initial
jurisdictional issue, I disagree with it on the merits and
would affirm the circuit court. First, as addressed in the
concurring opinion, it is undisputed that the subject
delinquent obligation on CVAS 2's real property is a "special
assessment" under Code § 15.2-5158(A)(5). Second, the special
assessment is a form of taxation on real estate, based on both
the express language of subsection (A)(5) of the statute
(describing the obligation alternatively as a levy of "taxes or
27
assessments") and the treatment of the subject by this Court.
Third, because the special assessment on CVAS 2's property is a
real estate tax, and it is more than two years past due, the
property can be sold for the delinquent taxes pursuant to Code
§ 58.1-3965, as the circuit court held.
CVAS 2 admitted in its answer to the City's complaint that
the levy was a special assessment, which is exclusively
controlled by subsection (A)(5) of Code § 15.2-5158 (not
subsection (A)(3) of the statute). Moreover, the City's
September 13, 2005 resolution governing the Celebrate Virginia
South Community Development Authority ("CDA") expressly
authorized the imposition of special assessments pursuant to
Code § 15.2-5158(A)(5), not a "special tax" under subsection
(A)(3) of the statute. The resolution then sets forth the
methodology to be used in levying the special assessment on
"the parcels [of land] in the CDA so that there is a rational
relationship between the assessments and the benefit received
from public improvements by each parcel." This provision is in
keeping with the express requirement under Code § 15.2-
5158(A)(5) that such "taxes or assessments may be imposed upon
abutting land which is later subdivided in accordance with the
terms of the ordinance forming the district, in amounts which
do not exceed the peculiar benefits of the improvements to the
abutting land as subdivided." In this case, the "taxes or
28
assessments" levied pursuant to subsection (A)(5) were for the
purpose of financing the debt on bonds issued by the CDA to
fund its improvements in the district. Id.
As indicated above, the "special assessment," which is the
sole subject of Code § 15.2-5158(A)(5), is described therein as
the levy of "taxes or assessments." 1 In so describing the
1
Code § 15.2-5158(A)(5)states as follows:
A. Each community development authority created under this
article, in addition to the powers provided in Article 3 (§
15.2-5110 et seq.) of Chapter 51 of this title, may:
. . . .
5. Finance the services and facilities it provides to
abutting property within the district by special assessment
thereon imposed by the local governing body. All assessments
pursuant to this section shall be subject to the laws
pertaining to assessments under Article 2 (§ 15.2-2404 et seq.)
of Chapter 24; provided that any other provision of law
notwithstanding, (i) the taxes or assessments shall not exceed
the full cost of the improvements, including without limitation
the legal, financial and other directly attributable costs of
creating the district and the planning, designing, operating
and financing of the improvements which include administration
of the collection and payment of the assessments and reserve
funds permitted by applicable law; (ii) the taxes or
assessments may be imposed upon abutting land which is later
subdivided in accordance with the terms of the ordinance
forming the district, in amounts which do not exceed the
peculiar benefits of the improvements to the abutting land as
subdivided; and (iii) the taxes or assessments may be made
subject to installment payments for up to 40 years in an amount
calculated to cover principal, interest and administrative
costs in connection with any financing by the authority,
without a penalty for prepayment. Notwithstanding any other
provision of law, any assessments made pursuant to this section
may be made effective as a lien upon a specified date, by
ordinance, but such assessments may not thereafter be modified
29
special assessment, the legislature did not establish two
different schemes under subsection (A)(5) for imposing a local
levy on properties located within a particular district in
order to fund the improvements undertaken by a community
development authority. Rather, subsection (A)(5) makes
provision for financing such improvements only through one type
of levy specifically tied to the costs of the improvements and
the "peculiar" benefits conferred upon the properties by those
improvements - whether the levy is called a tax or an
assessment. 2 Id.; see also Code § 15.2-2404 (establishing
in a manner inconsistent with the terms of the debt instruments
financing the improvements. All assessments pursuant to this
section may also be made subject to installment payments and
other provisions allowed for local assessments under this
section or under Article 2 of Chapter 24. All revenues received
by the locality pursuant to any such special assessments which
the locality elects to impose upon request of the development
authority shall be paid over to the development authority for
its use under this chapter, subject to annual appropriation,
and may be used for no other purposes.
(Emphasis added.)
2
By contrast, the local levy authorized under subsection
(A)(3) of Code § 15.2-5158 as a "special tax" to finance the
services and facilities provided by the community development
authority contains no limit based on the benefit of the
authority's improvements. Rather, it sets a limit that is tied
to the assessed fair market value of the taxable real estate in
the district ($.25 per $100 of assessed fair market value of
each parcel).
Subsection (A)(3) is not controlling in this case, in
light of the provisions and application of subsection (A)(5).
I note my agreement, however, with the concurring opinion's
interpretation of the phrase "at the same time and in the same
30
similar authority for local governments to impose "taxes or
assessments" on properties located in a particular area in
order to fund a variety of permitted improvements that would
specifically benefit those properties).
The description of the special assessment authorized under
Code § 15.2-5158(A)(5) as the levy of "taxes or assessments" is
consistent with the general definition of the term "special
assessment": "[t]he assessment of a tax on property that
benefits in some important way from a public improvement."
Black's Law Dictionary 140 (10th ed. 2014) (emphasis added).
In City of Richmond v. Richmond-Petersburg Turnpike
Authority, 204 Va. 596, 600, 132 S.E.2d 733, 736 (1963), this
Court recognized that a special assessment like the one at
issue here is most assuredly a tax on real estate. There, the
Richmond-Petersburg Turnpike Authority contended that, as a
political subdivision of the Commonwealth, it was exempt from
special assessments made against it by the City of Richmond for
manner" in subsection (A)(3), which is the linchpin of the
majority's analysis. More specifically, I agree that this
phrase is not in reference to Code § 58.1-3965, which sets
forth the authority and outlines the procedure for a locality
to effect a foreclose sale for delinquent real estate taxes.
When the phrase is read in a proper context, it is apparent
that the phrase only addresses the time and manner in which the
"special tax" is to be collected "annually" by the locality as
part of its routine procedure of billing and receiving payment
of taxes - not the procedure governing a foreclosure sale when
the taxes are delinquent. Code § 15.2-5158(A)(3).
31
the construction of sidewalks abutting the Authority's
properties. The City countered that the Authority was only
exempt from taxes, whereas the assessments at issue were not
taxes. Id. at 597, 132 S.E.2d at 733-34. In holding for the
Authority, the Court explained that "[c]ourts and text writers,
generally, make a distinction between special assessments, or
special taxes to pay for local improvements, and general tax
levies for purposes of carrying on the government." Id. at
598, 132 S.E.2d at 734. In that sense, "[t]he word 'taxes,'"
in reference to general taxes, "is not synonymous with
'assessments.'" Id. The Court nonetheless concluded that
"[t]he levies here, whether they be called taxes or
assessments, were taxes - maybe a special kind of taxes - that
is, local taxes assessed and imposed as liens upon real estate
of a political subdivision of the Commonwealth of Virginia." 3
3
This distinction between special assessments and general
taxes, as relates to the improvements for which they are
levied, has been well summarized as follows:
There is a distinction between public improvements, which
benefit the entire community, and local improvements, which
benefit particular real estate or limited areas of land. The
latter improvements are usually financed by means of special,
or local, assessments. These assessments are, in a certain
sense, taxes. But an assessment differs from a general tax in
that an assessment is levied only on property in the immediate
vicinity of some local municipal improvement and is valid only
where the property assessed receives some special benefit
differing from the benefit that the general public enjoys.
Robert Kratovil, Real Estate Law § 690, at 465 (6th ed. 1974).
32
Id. at 600, 132 S.E.2d at 736 (emphasis added). See City of
Roanoke v. Fisher, 193 Va. 651, 654, 70 S.E.2d 274, 277 (1952)
(identifying a "special assessment" to finance the cost of
local improvements as "in reality a tax"); see also Illinois
Central R.R. Co. v. Decatur, 147 U.S. 190, 197 (1893)
(explaining distinction between "general taxes" as one form of
levy on property and "special taxes or special assessments" as
another, "both of [which] are properly called taxes"); City of
Beckley v. Wolford, 140 S.E. 344, 345 (W. Va. 1927) (noting
that it is "thoroughly established" that "special assessments
are a species of taxation, and the authority to enforce them is
a branch of the taxing power") (internal quotation marks and
citations omitted). Accord: French v. Barber Asphalt Paving
Co., 181 U.S. 324, 343-44 (1901)(adopting Judge Dillon's
synthesis that the levy of "special assessments" is "a branch
of the taxing power, or included within it"); Parsons v.
District of Columbia, 170 U.S. 45, 55-56 (1898)(same). 4
4
In light of such authority, it is understandable why the
legislature chose to describe the "special assessment" under
Code § 15.2-5158(A)(5) as a levy of "taxes or assessments."
See also Code § 15.2-2404. Completely ignoring this line of
case law, however, the majority merely asserts that the
legislature's description is "inadvertent." Moreover, in doing
so, the majority overlooks the salient point recognized by
these cases that a special assessment like the one here is one
form of a real estate tax - even if the legislature had not
included the word "taxes" in describing it.
33
Finally, because the special assessment under Code § 15.2-
5158(A)(5) is a tax on real estate, it falls squarely within
the purview of Code § 58.1-3965 for its collection by
foreclosure sale when delinquent. Code § 58.1-3965(A) states,
in relevant part, that "[w]hen any taxes on any real estate in
a locality are delinquent on December 31 following the second
anniversary of the date on which such taxes have become due . .
. such real estate may be sold for the purpose of collecting
all delinquent taxes on such property." (Emphasis added.) In
this case, it is undisputed that CVAS 2's special assessment
was more than two years past due. Accordingly, CVAS 2's
property, on which the City levied the special assessment, was
subject to a foreclosure sale for the delinquent taxes under
Code § 58.1-3965.
For these reasons, I would affirm the circuit court in
ordering the sale of CVAS 2's property pursuant to Code § 58.1-
3965, and remand the case to the court for further proceedings.
JUSTICE POWELL, with whom JUSTICE GOODWYN joins, concurring.
Although I agree with the outcome of this case, I write
separately because I disagree with the majority with regard to
its analysis of Code § 15.2-5158(A)(3) and Code § 58.2-3965.
As an initial matter, in my opinion the majority applies
an incorrect standard of review in its analysis of the
34
ordinance at issue in this case. The majority relies on Smyth
County Community Hospital v. Town of Marion, 259 Va. 328, 336,
527 S.E.2d 401, 405 (2000), where this Court held that
“application of the requirements of [a statute] is a mixed
question of fact and law.” The issue in Smyth County Community
Hospital was whether a property was used in a manner that
“immediately and directly promote[d] the charitable purposes of
the hospital,” thereby exempting that property from taxation.
Id. In other words, it was necessary for us to examine the
facts before we could determine whether the law applied. The
question in the present case, however, is not whether the
ordinance applies to CVAS 2’s property; rather, the question is
what type of obligation is created by the ordinance.
In support of its holding, the majority explains that
“[d]etermining whether a particular obligation levied against
real estate is a special tax or a special assessment under the
Code requires evaluating the specific obligation imposed
relative to the different statutory definitions.” It is
unclear, however, how such a determination requires any form of
factual predicate. Indeed, the majority fails to explain what
factual findings, if any, a trial court could make that would
be germane to the issue of whether the ordinance created a
special tax or a special assessment.
35
In my opinion, determining the meaning of a statute or
ordinance relative to other statutory definitions is the very
definition of statutory interpretation. Accordingly, the
determination of what type of obligation this ordinance creates
is clearly an issue of statutory interpretation subject to de
novo review by this Court. See Renkey v. County Bd., 272 Va.
369, 373, 634 S.E.2d 352, 355 (2006) (recognizing that
interpretation of an ordinance “is a pure question of law
subject to de novo review by this Court”).
Here, the plain language of the relevant ordinance
unequivocally establishes that the obligation levied on the
property is a special assessment. The ordinance consistently
refers to the obligation as a special assessment and never once
refers to it as a tax of any sort. Further, the ordinance
specifically provides that the debt incurred by the CDA will be
“covered by . . . special assessments pursuant to Virginia Code
§ 15.2-5158(A)(5).” The ordinance goes on to explain that the
special assessments will levy a lien upon the property. See
City of Fredericksburg Resolution No. 05-87 (“[A]ll real
property in the District may be subject to the lien of a
special assessment to be established and levied by this
Resolution”) (emphasis added). Notably, under Code § 15.2-
5158(A)(5), only special assessments may be made effective as a
lien upon property to be paid in installments.
36
Thus, it is readily apparent that the ordinance at issue
in the present case created a special assessment. Accordingly,
the majority should have limited its analysis in this case to
the application of Code § 15.2-5158(A)(5). Indeed, I agree
with the majority’s application of Code § 15.2-5158(A)(5).
However, I believe that the majority’s analysis of Code § 15.2-
5158(A)(3), which only applies to special taxes, is unnecessary
and is, therefore, obiter dicta. See Harmon v. Peery, 145 Va.
578, 583, 134 S.E. 701, 702 (1926) (“Obiter dicta are such
opinions uttered by the way, not upon the point or question
pending, . . . as if turning aside . . . from the main topic of
the case to collateral subjects.” (citations and internal
quotation marks omitted)).
Notwithstanding the fact that I believe the majority’s
analysis of Code § 15.2-5158(A)(3) is unnecessary, I feel
compelled to address the majority’s application of the statute.
As an initial matter, I agree with the majority’s basic premise
that, as used in this statute, “at the same time” establishes
when a special tax is collected and “in the same manner”
establishes how a special tax is collected. I further agree
with the majority that “when a special tax is collected is
determined by the time when ‘the locality's taxes’ are
collected” and “how a special tax is collected is determined by
the manner in which ‘the locality's taxes’ are collected.”
37
Thus, under this logic, Code § 15.2-5158(A)(3) allows a
locality to collect special taxes when (i.e., “at the same
time”) and how (i.e., “in the same manner”) that locality’s
other taxes are collected.
However, I believe the majority’s analysis goes awry when
it creates a “prerequisite for collecting special taxes.”
Nothing in the statute indicates any such prerequisite.
Indeed, such an interpretation adds an additional procedural
requirement to the collection of special taxes, thus running
counter to the previously established definitions of “at the
same time” and “in the same manner.” Rather, the statute
merely states that the locality must use the same procedural
and temporal provisions that govern the collection of its other
taxes. 1
Furthermore, the majority fails to give proper weight to
the plain language of Code § 58.1-3965(A). Special taxes under
Code § 15.2-5158(A)(3) are levied on “taxable real property
within the development authority's jurisdiction to finance the
services and facilities provided by the authority.” Code
§ 58.1-3965(A) applies “[w]hen any taxes on any real estate in
1
I do, however, agree with the majority that a locality is
allowed to choose which of its taxes will provide the necessary
procedural and temporal provisions for the collection of
special taxes.
38
a locality are delinquent on December 31 following the second
anniversary of the date on which such taxes have become due.”
(Emphasis added.) As the special taxes described in Code
§ 15.2-5158(A)(3) are clearly taxes on real estate, Code
§ 58.1-3965(A) may be utilized to collect any sufficiently
delinquent special taxes owed on the property, independent of
whether there are any other delinquent real estate taxes due. 2
2
Contrary to what the majority states, my interpretation
of Code § 58.1-3965(A) does not render meaningless the “at the
same time and in the same manner” language of Code § 15.2-
5158(A)(3). Code § 58.1-3965(A) does not apply to the general
collection of taxes on real estate; it only applies when
certain conditions are met, i.e., when the taxes on real estate
are sufficiently delinquent. Code § 15.2-5158(A)(3), on the
other hand, only applies to the general collection of special
taxes; it makes no reference to the collection of delinquent
special taxes. Thus, the two statutes can be read
harmoniously: Code § 15.2-5158(A)(3) applies to the normal
collection of special taxes and Code § 58.1-3965(A) applies
when those special taxes become delinquent. See, e.g., L.F. v.
Breit, 285 Va. 163, 178, 736 S.E.2d 711, 719 (2013)(“[T]wo
statutes must be read ‘as a consistent and harmonious whole to
give effect to the overall statutory scheme.’")(quoting Bowman
v. Concepcion, 283 Va. 552, 563, 722 S.E.2d 260, 266 (2012)).
See also City of Lynchburg v. English Constr. Co., 277 Va. 574,
580, 675 S.E.2d 197, 200 (2009)(applying this doctrine to
multiple statutes governing collection of taxes by localities).
Furthermore, I note that nowhere does Code § 15.2-
5158(A)(3) state that “a special tax can only be collected ‘at
the same time’ when another type of ‘locality's tax[]’ is
collected,” as the majority insists. (Emphasis added.)
Indeed, such an approach necessarily renders the introductory
clause of Code § 58.1-3965.2 meaningless. Code § 58.1-3965.2
specifically references Code § 58.1-3965 as providing the
authority to initiate proceedings to sell property to collect
delinquent special taxes. Code § 58.1-3965.2 does not require
that the authority provided by Code § 58.1-3965 be exercised in
conjunction with Code § 15.2-5158(A)(3). Thus, it is readily
39
The majority’s holding with regard to special taxes
results in a curious taxing scheme. It makes no sense to allow
a property owner to disregard special taxes with impunity, so
long as he continues to pay the requisite “locality’s taxes” on
time. Indeed, it is unclear how a locality could ever collect
delinquent special taxes, absent the existence of the necessary
“prerequisite” delinquent “locality’s taxes.” 3
In my opinion, the ordinance unequivocally created a
special assessment under Code § 15.2-5158(A)(5). As I agree
with the majority’s analysis with regard to special
assessments, I concur in the judgment reversing the decision of
the trial court. I disagree with the majority’s further
analysis of the case under Code § 15.2-5158(A)(3). If,
however, the obligations levied on the property had actually
apparent that the General Assembly did not intend for Code
§ 15.2-5158(A)(3) to be the sole method by which a locality
could collect special taxes.
3
Under the majority’s interpretation of Code § 15.2-
5158(A)(3), not even the eventual sale of the property would
necessarily allow a locality to collect the delinquent special
taxes unless the locality was also able to collect the
prerequisite “locality’s taxes” at the same time. A
particularly crafty property owner could time the sale of the
property such that none of the prerequisite “locality’s taxes”
were due at the time of sale. As there is nothing in Code
§ 15.2-5158(A)(3) that allows the locality to treat the
delinquent special taxes as a lien upon the property, the
locality is left with no way to collect the delinquent special
taxes.
40
been special taxes under Code § 15.2-5158(A)(3), then, I would
have affirmed the decision of the trial court.
41