Newberry Station Homeowners Ass'n v. Board of Supervisors ( 2013 )

PRESENT: All the Justices
NEWBERRY STATION HOMEOWNERS
ASSOCIATION, INC., ET AL.
OPINION BY
v. Record No. 121209 JUSTICE WILLIAM C. MIMS
April 18, 2013
BOARD OF SUPERVISORS OF
FAIRFAX COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
In this appeal, we consider whether Code § 15.2-852(A)
prohibited two members of a board of supervisors from
participating in and voting on an application for a special
exception. We also consider whether the circuit court erred in
finding sufficient evidence to make approval of the application
fairly debatable.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
In 2010, Iskalo CBR, LLC, (“Iskalo”) filed an application
(“the Application”) for a special exception to build a
Washington Metropolitan Area Transit Authority (“WMATA”) bus
maintenance facility on a parcel of land in Fairfax County.
The parcel comprises 5.32 acres which lie in the R-1 zoning
district and 12.05 acres which lie in the I-6 zoning district.
After a public hearing, the planning commission approved the
facility as being substantially in accord with the
comprehensive plan pursuant to Code § 15.2-2232(A) and
recommended approval of the Application by the board of
supervisors (“the Board”). 1
Newberry Station is a residential community situated a
mile from the proposed facility and between 140 feet and a
quarter-mile from the road over which the bus traffic would
travel. If constructed, the facility would significantly
increase vehicular traffic over the road, attributable not only
to the buses but also to commuting employees traversing the
road during both daylight and overnight hours. The Newberry
Station Homeowners Association, Inc. (“the HOA”) submitted
official comments to the Board recommending that it overturn
the planning commission’s Code § 15.2-2232(A) approval and
reject the Application.
At a February 2011 public hearing, the Board’s chairman
and Supervisor Cook disclosed that they had received campaign
contributions from attorneys representing Iskalo. In addition,
Supervisor Hudgins disclosed that she was a principal director
of WMATA and Supervisor McKay disclosed that he was an
alternate director of WMATA. At its March 2011 meeting, the
Board approved the Application by a vote of 6 to 3. The
Board’s chairman abstained and the three supervisors who had
made disclosures voted to approve the Application.
1
The Board reserves the authority to grant special
exceptions. Fairfax County Zoning Ordinance (“FCZO”) § 9-001;
see also Code § 15.2-2286(A)(3).
2
The HOA, Brandon Farlander, and Michael Miller
(collectively, “Newberry Station”) thereafter filed a complaint
seeking a declaratory judgment that the Board’s approval of the
Application was void and an injunction barring construction of
the facility. 2 They argued that Code § 15.2-852(A) required
Supervisors Cook, Hudgins, and McKay to recuse themselves from
the Board’s consideration of the Application and that, had they
recused themselves as required, the Application would have
failed on a 3-3 vote. The complaint also alleged that the
Board’s approval of the Application was not fairly debatable.
The Board filed a demurrer arguing, among other things,
that while Code § 15.2-852(A) required the disclosure made by
the three supervisors, it did not require them to recuse
themselves because they did not have a conflicting business or
financial interest covered by the statute. The Board further
argued that there was sufficient evidence to establish that its
approval of the Application was fairly debatable.
The circuit court sustained the Board’s demurrer only as
to the applicability of Code § 15.2-852(A). Thereafter, the
parties filed cross-motions for summary judgment. In its
motion the Board again argued that the evidence was sufficient
2
The complaint named the Board, WMATA, and Iskalo as
defendants. Iskalo was subsequently dismissed from the case.
The order granting the Board’s motion for summary judgment
dismissed the complaint as to both the Board and WMATA and
therefore is final as to all remaining parties.
3
to establish that its approval of the Application was fairly
debatable. The circuit court agreed. It therefore awarded the
Board summary judgment and dismissed the complaint.
We awarded Newberry Station this appeal.
II. ANALYSIS
A. CONFLICTS OF INTEREST REQUIRING
RECUSAL UNDER CODE § 15.2-852(A)
In its first assignment of error, Newberry Station asserts
that the circuit court erred in sustaining the Board’s demurrer
because Supervisors Hudgins and McKay each had a conflict of
interest and therefore was ineligible under Code § 15.2-852(A)
to participate and vote during the Board’s consideration of the
Application. 3 The circuit court ruled that the supervisors did
not have conflicts within the meaning of the statute. This is
a question of statutory interpretation which we review de novo.
Manchester Oaks Homeowners Ass'n v. Batt, 284 Va. 409, 427, 732
S.E.2d 690, 701 (2012).
3
Newberry Station no longer asserts that the circuit court
erred in sustaining the Board’s demurrer as to Supervisor Cook.
Consequently, Newberry Station’s appeal now challenges only 2
votes of the 3-vote majority which approved the special
exception. Nevertheless, Code § 15.2-852(A) disqualifies
members with conflicts of interest from not only voting but
also from “participat[ing] in any way.”
Newberry Station alleged both that Supervisors Hudgins and
McKay participated extensively in preliminary proceedings and
that their participation tainted the Board’s entire
consideration of the Application. Because this issue was
decided on demurrer, we must accept these allegations as true.
Schilling v. Schilling, 280 Va. 146, 147, 695 S.E.2d 181, 182
(2010).
4
Code § 15.2-852(A) provides in relevant part that:
Each individual member of the board of
supervisors . . . in any proceeding . . .
involving an application for a special
exception . . . shall, prior to any hearing
on the matter or at such hearing, make a
full public disclosure of any business or
financial relationship which such member
has, or has had within the 12-month period
prior to such hearing, (i) with the
applicant in such case, or (ii) with the
title owner, contract purchaser or lessee
of the land that is the subject of the
application . . ., or (iii) if any of the
foregoing is a trustee (other than a
trustee under a corporate mortgage or deed
of trust securing one or more issues of
corporate mortgage bonds), with any trust
beneficiary having an interest in such
land, or (iv) with the agent, attorney or
real estate broker of any of the foregoing.
For the purpose of this subsection,
“business or financial relationship” means
any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member, or any member of the
member’s immediate household, either
directly or by way of a partnership in
which any of them is a partner, employee,
agent or attorney, or through a partner of
any of them, or through a corporation in
which any of them is an officer, director,
employee, agent or attorney or holds 10
percent or more of the outstanding bonds or
shares of stock of a particular class, has,
or has had within the 12-month period prior
to such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified. For the purpose of this
subsection “business or financial
relationship” also means the receipt by the
member, or by any person, firm, corporation
or committee in his behalf from the
applicant in the case or from the title
5
owner, contract purchaser or lessee of the
subject land . . ., or from any of the
other persons above specified, during the
12-month period prior to the hearing in
such case, of any gift or donation having a
value of more than $100, singularly or in
the aggregate.
If at the time of the hearing in any
such case such member has a business or
financial interest with the applicant in
the case or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified involving the relationship of
employee-employer, agent-principal, or
attorney-client, that member shall, prior
to any hearing on the matter or at such
hearing, make a full public disclosure of
such relationship and shall be ineligible
to vote or participate in any way in such
case or in any hearing thereon.
Newberry Station argues that the statute defines “business
or financial interest” as
any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member . . . either directly or
by way of a partnership in which any of
them is a partner, employee, agent or
attorney, or through a partner of any of
them, or through a corporation in which any
of them is an officer, director, employee,
agent or attorney or holds 10 percent or
more of the outstanding bonds or shares of
stock of a particular class, has, or has
had within the 12-month period prior to
such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
. .
By contrast, the Board argues that this language defines a
“business or financial relationship” and does not pertain to a
6
“business or financial interest.” According to the Board, the
General Assembly used two distinct terms in the statute and
Newberry Station incorrectly uses them interchangeably. The
definition of “business or financial interest,” the Board
continues, is defined in the second paragraph of Code § 15.2-
852(A) as an interest “involving the relationship of employee-
employer, agent-principal, or attorney-client.” Therefore, the
Board concludes, the statute recognizes two distinct classes of
conflict and imposes different obligations on members for each
class: a member who has any qualifying “business or financial
relationship” at the time of the hearing, or who has had such a
relationship at any time within the 12 months preceding the
hearing, must “make a full public disclosure” of the
relationship; however, any member who has “a business or
financial interest” at the time of the hearing not only must
“make a full public disclosure of such relationship” but also
“shall be ineligible to vote or participate in any way in such
case or in any hearing thereon.” Code § 15.2-852(A) (emphasis
added).
Newberry Station responds that the Board’s interpretation
is incorrect. It argues that the phrase “involving the
relationship of employee-employer, agent-principal, or
attorney-client” modifies only the phrase “any of the other
persons above specified.” Thus, according to Newberry Station,
7
the second paragraph merely prohibits a business or financial
interest with (1) the applicant, (2) the title owner, (3) the
contract purchaser, (4) the lessee, or (5) “any of the other
persons above specified involving the relationship of employee-
employer, agent-principal, or attorney-client.” It therefore
does not, Newberry Station concludes, provide any independent
definition of “business or financial interest.”
It is well-settled that “we determine the General
Assembly’s intent from the words contained in the statute.”
Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565
(2004). Accordingly, “[w]hen a statute is unambiguous, we must
apply the plain meaning of that language.” Appalachian Power
Co. v. State Corp. Comm’n, 284 Va. 695, 706, 733 S.E.2d 250,
256 (2012). “[W]hen the language of an enactment is free from
ambiguity, resort to legislative history and extrinsic facts is
not permitted because we take the words as written to determine
their meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d
84, 87 (1985).
However, a statute is ambiguous when its language is
“capable of more senses than one, difficult to comprehend or
distinguish, of doubtful import, of doubtful or uncertain
nature, of doubtful purport, open to various interpretations,
or wanting clearness of definiteness,” particularly where its
words “have either no definite sense or else a double one.”
8
Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 393, 2
S.E.2d 303, 307 (1939). We determine that the arguments
advanced by both sides have some element of merit and that the
phrase “business or financial interest” is undefined and
ambiguous in light of its placement following the defined term
“business or financial relationship.” We therefore will
consider the meaning of the statute in light of the canons of
construction and its legislative history.
We begin by evaluating the Board’s argument that the
statute defines “business or financial interest” as one
“involving the relationship of employee-employer, agent-
principal, or attorney-client.” The relevant portion of the
second paragraph of Code § 15.2-852(A) provides that
[i]f at the time of the hearing in any such
case such member has a business or
financial interest with the applicant in
the case or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified involving the relationship of
employee-employer, agent-principal, or
attorney-client, that member shall, prior
to any hearing on the matter or at such
hearing, make a full public disclosure of
such relationship and shall be ineligible
to vote or participate in any way in such
case or in any hearing thereon.
The question essentially is whether the phrase “involving
the relationship of employee-employer, agent-principal, or
attorney-client” modifies the noun “persons” in “any of the
other persons above specified” or the noun “interest” in
9
“business or financial interest.” The Board adopts the first
of these possible constructions. Under this argument, the
phrase “involving the relationship of employee-employer, agent-
principal, or attorney-client” applies to each of the preceding
entities: the applicant, the title owner, the contract
purchaser, the lessee, or any of the other persons listed in
the first paragraph of the subdivision. That construction
contravenes the rule of the last antecedent.
Under that rule, “[r]eferential and qualifying words and
phrases, where no contrary intention appears, refer solely to
the last antecedent. The last antecedent is ‘the last word,
phrase, or clause that can be made an antecedent without
impairing the meaning of the sentence.’” Alger, 267 Va. at
259, 590 S.E.2d at 565-66 (quoting 2A Norman J. Singer,
Sutherland on Statutory Construction § 47.33 (6th rev. ed.
2000)). Applying the rule to the operative sentence here, the
phrase “involving the relationship of employee-employer, agent-
principal, or attorney-client” modifies only the immediately
preceding antecedent: “any of the other persons above
specified.” The phrase does not apply to the applicant, the
title owner, the contract purchaser, or the lessee. 4 It
4
In Alger, we also noted the preferred procedure for
clarifying whether modifying language is intended to modify all
preceding antecedents or only the final one. 267 Va. at 260 &
n.3, 590 S.E.2d at 566 & n.3. The General Assembly is presumed
to be aware of that decision, see Barson v. Commonwealth, 284
10
similarly does not modify “business or financial interest,”
thereby defining that phrase to be distinct from “business or
financial relationship.” 5 We now turn to Newberry Station’s
argument.
We have repeatedly said that, “[w]hen interpreting and
applying a statute, we ‘assume that the General Assembly chose,
Va. 67, 74, 726 S.E.2d 292, 296 (2012), and it has made no
corresponding amendment to Code § 15.2-852(A).
5
Only two words separate the phrase “involving the
relationship of employee-employer, agent-principal, or
attorney-client” from “persons” in “any of the other persons
above specified.” By comparison, 53 words separate it from
“interest” in the phrase “business or financial interest.” Had
the General Assembly intended the phrase “involving the
relationship of employee-employer, agent-principal, or
attorney-client” to modify “interest,” it would have written
the prohibition to apply when a “member has a business or
financial interest involving the relationship of employee-
employer, agent-principal, or attorney-client with the
applicant,” and so forth. It did not.
Similarly, we are not persuaded that the phrase “any of
the other persons above specified” is legislative shorthand
intending simply to bring the entities identified by clauses
(iii) and (iv) of the first paragraph within the reach of the
second paragraph. The second paragraph explicitly recites in
full the entities identified by clauses (i) and (ii) of the
first paragraph. “[I]t is a ‘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.’” Brown v. Commonwealth, 284 Va. 538,
544, 733 S.E.2d 638, 641 (2012). We therefore must conclude
that the General Assembly acted deliberately when it treated
the clause (i) and (ii) entities differently compared to the
clause (iii) and (iv) entities. If it intended only to resort
to legislative shorthand, the General Assembly would have
abbreviated the second paragraph considerably by writing the
prohibition to apply when a “member has a business or financial
interest involving the relationship of employee-employer,
agent-principal, or attorney-client with any entity identified
in clauses (i) through (iv) above.” Again, it did not.
11
with care, the words it used in enacting the statute, and we
are bound by those words.’” Kiser v. A.W. Chesterton Co., 285
Va. 12, 19 n.2, 736 S.E.2d 910, 915 n.2 (2013) (quoting Halifax
Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d
696, 702 (2001)); accord Rives v. Commonwealth, 284 Va. 1, 3,
726 S.E.2d 248, 250 (2012). Therefore, “‘when the General
Assembly has used specific language in one instance, but omits
that language or uses different language when addressing a
similar subject elsewhere in the Code, we must presume that the
difference in the choice of language was intentional.’” Id.
(quoting Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va.
330, 337, 714 S.E.2d 922, 925 (2011)).
Applying these principles to this case could lead to the
conclusion that the General Assembly deliberately chose the
phrase “business or financial relationship” in the first
paragraph of Code § 15.2-852(A) and “business or financial
interest” in the second paragraph intending the two phrases to
have different meanings. However, the legislative history of
this specific statute reveals a contrary purpose.
When the statute originally was enacted and codified as
former Code § 15.1-73.4, and for nearly thirty years
thereafter, the phrase “business or financial interest” was
followed by the phrase “as above defined,” indicating that the
General Assembly intended that phrase to have the meaning set
12
forth in preceding language. 1968 Acts ch. 774; accord 1970
Acts ch. 654; 1988 Acts ch. 879. Yet no definition of
“business or financial interest” was provided there; the only
definition set forth was the one provided for a “business and
financial relationship.” Id. This supports an interpretation
that the legislature at that time intended the terms “business
or financial relationship” and “business or financial interest”
to be synonymous.
However, the General Assembly subsequently struck the
phrase “as above defined” from the statute when it was
recodified as Code § 15.2-852. 1997 Acts ch. 587. The Board
argues this amendment reflects legislative intent that the two
phrases thenceforth would have two distinct meanings. We
disagree.
As an enactment to recodify an existing title of the Code
of Virginia, the underlying legislation was prepared by the
Virginia Code Commission (“the Commission”) at the direction of
the General Assembly, Senate J. Res. 2, 1994 Acts, at 2600, and
it was accompanied by a drafting report. Senate Doc. No. 5,
Virginia Code Commission, Report on the Recodification of Title
15.1 of the Code of Virginia at 173-74 (1997). The drafting
report proposed the elimination of “as above defined” after the
phrase “business or financial interest.” Id. at 174. The
13
drafting note for this amendment also states that the proposal
was not intended to effect a substantive change. Id.
The Commission’s report on the recodification is the
impetus of the underlying legislation at issue here. 6 The
General Assembly expressly instructed the Commission “to study
Title 15.1” and report back a revision of the title. Senate J.
Res. 2, 1994 Acts, at 2600. The General Assembly then enacted
into law the proposals contained in the report with few
amendments, and no amendments at all to the recommended
language of the provision that is now codified as Code § 15.2-
852(A). We therefore accept the report’s drafting note as
persuasive authority that the General Assembly did not intend
to effectuate a substantive change to the definition of
“financial or business interest” with the 1997 recodification.
As previously noted, from the time of its original
enactment in 1968 to the 1997 recodification the operative
language of the second paragraph began, “[i]f at the time of
the hearing . . . a member . . . has a business or financial
6
It has been noted that neither the single voice of one
contemporaneous legislator nor a chorus of voices from a
subsequent session composed of later-elected legislators may
authoritatively state the legislature’s intent in enacting
legislation. Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 117-18 (1980). But the Commission report
is neither of these and, as Chief Justice John Marshall noted,
“‘[w]here the mind labours to discover the design of the
legislature, it seizes every thing from which aid can be
derived.’” Id. at 118 n.13 (quoting United States v. Fisher, 6
U.S. 358, 386 (1805)).
14
interest, as above defined . . . .” Former Code § 15.1-73.4
(emphasis added). However, the phrase “business or financial
interest” was not defined in the preceding language; only the
phrase “business or financial relationship” was defined. We
therefore conclude that the phrase “business or financial
interest” was intended to have the same meaning as “business or
financial relationship.” Separating the meaning of “business
or financial interest” as used in the second paragraph from
“business or financial relationship” as used in the first
paragraph would have effectuated a substantive change. That
expressly was not the intention of the Commission in proposing
the amendment and there is no evidence that the General
Assembly enacted the proposal with a different intent.
Accordingly, “business and financial interest” has the
same meaning as “business and financial relationship.” As
defined in the statute, “business or financial relationship”
means, in relevant part, 7
any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member . . . either directly or
by way of a partnership in which any of
them is a partner, employee, agent or
attorney, or through a partner of any of
them, or through a corporation in which any
7
Newberry Station does not contend that Supervisors
Hudgins or McKay received any gift or donation exceeding $100
in value. The definition of “business or financial
relationship” encompassing such gifts or donations therefore is
not relevant here.
15
of them is an officer, director, employee,
agent or attorney or holds 10 percent or
more of the outstanding bonds or shares of
stock of a particular class, has, or has
had within the 12-month period prior to
such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
. .
Code § 15.2-852(A). Although this is the definition Newberry
Station favors, our analysis is not concluded. Rather, we must
determine whether Supervisors Hudgins and McKay had such a
relationship.
Newberry Station argues that such a relationship existed
because (a) WMATA was the contract purchaser of the land
subject to the Application and (b) WMATA is a corporation and
Supervisors Hudgins and McKay were members of its board of
directors. Although it does not dispute that WMATA was the
contract purchaser, the Board responds that WMATA is a
governmental agency, not a private corporation, and therefore
is not a corporation within the meaning of Code § 15.2-852(A).
Having recently addressed a similar issue, we agree with the
Board.
WMATA is a government agency created in corporate form by
interstate compact between Virginia, Maryland, and the District
of Columbia. The Washington Metropolitan Area Transit
Regulation Compact of 1966, as amended by 2009 Acts chs. 771
and 828 (“the Compact”) states:
16
There is hereby created, as an
instrumentality and agency of each of the
Signatory parties hereto, the Washington
Metropolitan Area Transit Authority which
shall be a body corporate and politic, and
which shall have the powers and duties
granted herein and such additional powers
as may hereafter be conferred upon it
pursuant to law.
(Emphasis added.) The words “body corporate and politic”
create a corporation. See Dunningtons v. President & Dir. N.
W. Turnpike Road, 47 Va. (6 Gratt.) 160, 170 (1849); Chapline
v. Overseers of the Poor, 34 Va. (7 Leigh) 231, 233 (1836).
However, WMATA is also “an instrumentality and agency of” the
Commonwealth. See Short Pump Town Ctr. Cmty. Dev. Auth. v.
Hahn, 262 Va. 733, 742 & n.10, 554 S.E.2d 441, 445 & n.10
(2001) (language creating a “public body corporate and politic”
or creating a “body corporate and politic” and a “political
subdivision” creates a governmental agency).
In Cuccinelli v. Rector & Visitors of the University of
Virginia, 283 Va. 420, 722 S.E.2d 626 (2012), we were called
upon to determine whether the University of Virginia, which
like WMATA is a governmental agency in corporate form, 8 was a
“person” for the purposes of the Virginia Fraud Against
Taxpayers Act, Code § 8.01-216.1 et seq. We noted that a
8
The university is a corporation by operation of statute.
Code § 23-69. Nevertheless, it is also an agency of the
Commonwealth. Rector & Visitors of the Univ. of Va. v. Carter,
267 Va. 242, 245, 591 S.E.2d 76, 78 (2004) (citing James v.
Jane, 221 Va. 43, 51, 282 S.E.2d 864, 868 (1980)).
17
“corporation” was included in the definition of “person”
provided in Code § 8.01-216.2 for that Act. 283 Va. at 426,
722 S.E.2d at 630. However, we also noted that the term
“corporation” appeared alongside the terms “firm, association,
organization, partnership, limited liability company, business
or trust." Id. Applying the canon of noscitur a sociis, 9 we
concluded that the term “‘corporation’ should be understood as
a similarly oriented private sector entity, and not as
encompassing an agency of the Commonwealth.” Id. at 432, 722
S.E.2d at 633.
In applying the canon to Code § 15.2-852(A), the related
words and phrases from which the precise meaning of
“corporation” should be ascertained are “retail establishment,”
“public utility,” “bank,” and “partnership.” These words
accompanying “corporation” in Code § 15.2-852(A) relate to
entities oriented to financial gain just as the words
accompanying “corporation” do in Code § 8.01-216.2. As used in
Code § 15.2-852(A), the words illustrate that in enacting the
9
Under the canon of noscitur a sociis, the precise meaning
intended by the legislature of a word susceptible to multiple
meanings is ascertained “by reference to [its] association with
related words and phrases” in the statute. Cuccinelli, 283 Va.
at 432, 722 S.E.2d at 633 (quoting Andrews v. Ring, 266 Va.
311, 319, 585 S.E.2d 780, 784 (2003)). Where general words and
specific words occur together, “the general words are limited
and qualified by the specific words and will be construed to
embrace only objects similar in nature to those objects
identified by the specific words.” Id. (quoting Andrews, 266
Va. at 319, 585 S.E.2d at 784).
18
statute the General Assembly intended to prevent members of the
Board from acting on public business from which they may
receive a financial benefit, either directly or through a
household member. Because WMATA is a governmental agency
organized in corporate form, it affords no opportunity for
financial benefit to its unpaid directors. 10 It therefore is
not a “corporation” within the meaning of the statute.
Accordingly, the circuit court did not err in sustaining
the Board’s demurrer. We therefore will affirm this portion of
its judgment.
B. SUFFICIENCY OF THE EVIDENCE
In its second assignment of error, Newberry Station
asserts that the circuit court erred by awarding the Board
summary judgment upon a finding that the Board’s approval of
the Application was fairly debatable.
Approval of a special exception is a legislative act.
Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 581,
727 S.E.2d 40, 47 (2012) (citing Fairfax County Board of
Supervisors v. Southland Corp., 224 Va. 514, 522, 297 S.E.2d
718, 722 (1982)). It therefore is entitled to a presumption of
validity. Town of Leesburg v. Giordano, 280 Va. 597, 606, 701
S.E.2d 783, 787 (2010).
10
The Compact expressly provides that “[m]embers of the
Board and alternates shall serve without compensation but may
be reimbursed for necessary expenses incurred as an incident to
the performances of their duties.”
19
This presumption of validity is a
presumption of reasonableness. Legislative
action is reasonable if the matter at issue
is fairly debatable. 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. Under the fairly
debatable standard, the governing body is
not required to go forward with evidence
sufficient to persuade the fact-finder of
reasonableness by a preponderance of the
evidence.
[Rather, w]here 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 legislative
action must be sustained. If not, the
evidence of unreasonableness defeats the
presumption of reasonableness and the
legislative action cannot be sustained.
Id., 701 S.E.2d at 787-88 (internal citations, quotation marks,
and alterations omitted). Nevertheless, when a legislative act
is undertaken in violation of an existing ordinance, the
board’s “action [i]s arbitrary and capricious, and not fairly
debatable, thereby rendering the [legislative act] void and of
no effect.” Renkey v. County Bd. of Arlington County, 272 Va.
369, 376, 634 S.E.2d 352, 356 (2006).
Newberry Station first argues that the Board’s action was
arbitrary and capricious, and therefore void, under the Renkey
standard because the Application was approved in violation of
FCZO §§ 9-006(6), 9-011, and 9-404(4). However, unlike the
20
ordinance at issue in Renkey, the cited provisions do not
restrict the authority of the Board to act.
In Renkey, we considered a provision in the Arlington
County Zoning Ordinance (“ACZO”). That provision permitted the
board of supervisors to rezone land into a “C-R” class
designation. The ordinance provided that “to be eligible for
the classification, a site shall be located within an area
designated ‘medium density mixed use’ and zoned ‘C-3’.” 272
Va. at 373, 634 S.E.2d at 354 (quoting ACZO § 27A). A
landowner applied to have its parcel rezoned into the “C-R”
class designation and the board of supervisors approved the
application. However, only a portion of the subject parcel was
previously zoned in the “C-3” class designation. Id. at 371,
634 S.E.2d at 353.
Renkey challenged the board’s approval in an action for
declaratory judgment and injunctive relief, arguing that the
board’s action was invalid because the non-“C-3” portion of the
parcel was ineligible to be rezoned into the “C-R” class
designation under the ordinance. Id. at 371-72, 634 S.E.2d at
354. We agreed with Renkey, concluding that the board lacked
authority under the ordinance to rezone the non-“C-3” portion
of the parcel into the “C-R” class designation. That portion
of the parcel was, by the terms of the ordinance, ineligible to
be so rezoned. Accordingly, the board’s “action was arbitrary
21
and capricious, and not fairly debatable, thereby rendering the
re-zoning void and of no effect.” Id. at 376, 634 S.E.2d at
356.
While ACZO § 27A restricted the authority of the board of
supervisors to rezone the parcel in Renkey, the ordinance
provisions implicated in this case do not restrict the Board’s
general authority to grant special exceptions. Rather, they at
most articulate the standards by which the Board’s
consideration of a special exception application is to be
guided. While a zoning ordinance must set forth standards
under which applications for special exceptions are to be
considered when local governing bodies delegate that
legislative power, the ordinance need not do so when the local
governing body has reserved the power unto itself. Jennings v.
Board of Supervisors, 281 Va. 511, 520, 708 S.E.2d 841, 846
(2011) (comparing Bollinger v. Board of Supervisors, 217 Va.
185, 187, 227 S.E.2d 682, 683 (1976) with Ames v. Town of
Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990)).
Even when the local governing body delegates the power to
approve or deny a special exception, whereupon standards must
be articulated in the zoning ordinance, id., the judicial
inquiry is limited to the question of whether the “officials,
agencies, and boards exercising delegated legislative powers .
. . ha[ve] acted in accordance with the policies and standards
22
specified in the legislative delegation of power.” Ames, 239
Va. at 349, 389 S.E.2d at 705. That review is subject to the
presumption of validity recited above. Id. at 347-48, 389
S.E.2d at 704; accord Town of Leesburg, 280 Va. at 606, 701
S.E.2d at 787-88. Accordingly, while a local governing body
acts arbitrarily and capriciously when it acts outside the
scope of the authority conferred by the zoning ordinance, and
the resulting action is void, Renkey, 272 Va. at 376, 634
S.E.2d at 356, we apply the presumption of validity when we
review whether the local governing body adequately considered
the standards set forth in the zoning ordinance when it
approved or denied a special exception application.
Newberry Station also argues that the Board’s approval of
the Application is not entitled to a presumption of validity
because it is not fairly debatable. For Newberry Station to
prevail on this argument, the record must establish that it met
its burden to adduce evidence of unreasonableness sufficient to
rebut the presumption of reasonableness and that the Board
failed to meet Newberry Station’s evidence with some evidence
of reasonableness. Town of Leesburg, 280 Va. at 606, 701
S.E.2d at 788.
Newberry Station specifically argues that the Board’s
approval of the Application was unreasonable because the Board
relied on a staff report that evaluated the Application without
23
considering standards applicable under the ordinance. Newberry
Station’s concerns are particularly directed to three
standards, those set forth for open space, noise, and hazardous
and toxic substances. We will consider each argument in turn.
Newberry Station first challenges the Board’s approval on
the basis of open space requirements. FCZO § 9-006 requires
the Board to consider certain general standards for all special
exception applications. Among these is whether “[o]pen space
[is] provided in an amount equivalent to that specified for the
zoning district in which the proposed use is located.” FCZO §
9-006(6). FCZO § 5-608, applicable to the portion of the
parcel lying in the I-6 zoning district, requires 10% of the
gross area to be landscaped open space.
Newberry Station contends the Board failed to consider
this standard because the staff report did not assess the
amount of open space reserved on the portion of the parcel
lying in the I-6 zoning district. The Board responds that the
report contains sufficient evidence that the open space
requirement would be met. We agree with the Board.
The report includes a plat of the portion of the parcel in
the I-6 zoning district. Newberry Station concedes that the
portion of the parcel in the I-6 district has an area of 12.05
acres. The Court may take judicial notice that an acre
consists of 43,560 square feet. See Shackleford v.
24
Commonwealth, 262 Va. 196, 210-11, 547 S.E.2d 899, 907 (2001)
(holding “the circuit court did not err in taking judicial
notice of the conversion ratio” between standard units of
measurement). Therefore, the portion of the parcel in the I-6
district is 524,898 square feet.
Measuring the entire developed area of the parcel lying
within the I-6 zoning district, including the facility, its
parking lots, and other structures, as shown on that plat and
according to its scale of measure, the area is less than
470,000 square feet, leaving more than 54,898 square feet
undeveloped. This exceeds the 10% open space requirement by
more than 2400 square feet.
Newberry Station next challenges the Board’s approval on
the basis of noise limits. FCZO § 9-404(4) requires that
“[a]ll [transportation] facilities shall be so located and so
designed that the operation thereof will not seriously affect
adjacent residential areas, particularly with respect to noise
levels.”
Newberry Station contends the noise study used by the
Board in its consideration predicted the noise levels would be
55.3 decibels if the facility were approved. Under Fairfax
County Code § 108-4-4(a), Newberry Station continues, noise
levels in residential areas from stationary sources may not
25
exceed 55 decibels. The Board responds that Newberry Station
has relied on an inapplicable section of the noise ordinance.
The noise study evaluated noise levels at Hunter Estates,
a residential community adjoining the parcel subject to the
Application. By its own admission, Newberry Station is farther
away from the proposed facility than Hunter Estates.
Consequently, the study is not probative of the noise levels
which may affect Newberry Station. While Newberry Station also
argues that the buses traveling to and from the facility would
generate excessive noise, and that Newberry Station is closer
to the road than Hunter Estates, the limits set by the noise
ordinance for vehicular traffic range from 76 to 90 decibels,
depending on the size of the vehicle and the applicable speed
limit. Fairfax County Code § 108-4-5(a). Newberry Station has
adduced no evidence that the noise from bus traffic would
exceed these levels. 11
More importantly, FCZO § 9-404(4) merely requires the
Board to consider the effect of noise in residential areas. It
does not incorporate the noise ordinance and the noise
ordinance does not provide for its enforcement through the
11
On brief, Newberry Station avers that it would have
provided additional evidence in the form of expert testimony.
However, no assignment of error asserts that the circuit court
erred in awarding summary judgment because material facts were
in dispute or that the court improperly excluded admissible
evidence. The averment therefore has no relevance to this
appeal. See Rule 5:17(c)(1)(i); Rule 5:27(d).
26
zoning ordinance. To the contrary, the noise ordinance
expressly provides for its enforcement as a misdemeanor
punishable by not more than 30 days’ imprisonment or a fine of
not more than $1000. Fairfax County Code § 108-1-3.
Newberry Station finally challenges the Board’s approval
on the basis of hazardous and toxic substances. FCZO § 9-
011(7)(H) requires all special exception applications to
include “[a] listing, if known, of all hazardous or toxic
substances as set forth in Title 40, Code of Federal
Regulations Parts 116.4, 302.4 and 355 . . . to be generated,
utilized, stored, treated, and/or disposed of on site and the
size and contents of any existing or proposed storage tanks or
containers.”
Newberry Station contends the application included no such
listing of substances. Rather, it continues, the Application
merely included plats displaying storage tanks for certain
substances and an additional “hazmat container” with no
indication of what it would contain. Newberry Station also
contends that WMATA uses ethylene glycol, a substance listed in
40 C.F.R. § 302.4, at all its facilities and that ethylene
glycol is not identified in the Application. The Board
responds that the designation of the various containers on the
plats is sufficient because hazardous and toxic substances are
27
regulated during the site-plan review process, not the special
exception approval process.
Unlike FCZO §§ 9-006(6) and 9-404(4), FCZO § 9-011 does
not set forth standards for the Board’s consideration of a
special exception application. Rather, by its own terms FCZO §
9-011 governs the information required to be submitted by the
applicant. The section is captioned “Submission Requirements”
and it begins “[a]ll applications for special exception uses
shall be accompanied by the following items . . . .” FCZO § 9-
011.
While it might be possible in a hypothetical case that an
applicant’s failure to submit an application that fulfills a
requirement imposed by the zoning ordinance would prevent a
local governing body or delegated authority from considering
one or more of the standards set forth in the ordinance, that
is not the case here. Newberry Station has not identified any
provision of the FCZO that establishes standards for the Board
to consider with respect to hazardous or toxic substances.
There is no standard, for example, obligating the Board to
consider the types or quantities of such materials, or
regulating the production, use, storage, treatment, or disposal
of such materials, even if identified by the applicant. Cf.
FCZO § 9-011(7)(H). Therefore, an applicant’s failure to
28
identify the materials does not impede, obstruct, or adversely
affect the Board’s consideration of any such standard.
Accordingly, the record contains sufficient evidence of
reasonableness to make the Board’s approval of the Application
fairly debatable. To the extent Newberry Station adduced
evidence of unreasonableness, the Board met the challenge “by
some evidence of reasonableness,” and its decision “must be
sustained.” Town of Leesburg, 280 Va. at 606, 701 S.E.2d at
788. The circuit court therefore did not err in awarding the
Board summary judgment and we will affirm that portion of its
judgment.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the circuit court.
Affirmed.
JUSTICE McCLANAHAN, concurring.
I agree with the majority's analysis and conclusion as to
the sufficiency of the evidence issue. Also, I agree with the
majority's conclusion that Supervisors Hudgins and McKay did
not have conflicts within the meaning of Code § 15.2-852(A). I
write separately, however, because I believe the Board of
Supervisors of Fairfax County (the "Board") reads subsection A
of the statute correctly, which is much more limited in scope
than the majority's construction.
29
The second paragraph of Code § 15.2-852(A) sets forth, in
concise terms, the circumstances requiring a Board member's
recusal. This Court may not, "under the guise of statutory
construction," read into this provision words not used and
meaning not readily derived from its language. Lahey v.
Johnson, 283 Va. 225, 230, 720 S.E.2d 534, 537 (2012). "'When
the legislature has spoken plainly it is not the function of
courts to change or amend its enactments under the guise of
construing them. The province of [statutory] construction lies
wholly within the domain of ambiguity, and that which is plain
needs no interpretation.'" Id. (quoting Doss v. Jamco, Inc.,
254 Va. 362, 370, 492 S.E.2d 441, 445 (1997)).
Furthermore, to the extent there is any doubt as to the
meaning of Code § 15.2-852(A), the fact that there is a penal
aspect to this provision must be considered. Subsection C of
Code § 15.2-852 states that "[a]ny person knowingly and
willfully violating the provisions of this section shall be
guilty of a Class 1 misdemeanor." Therefore, any construction
of the statute must "limit its application to cases falling
clearly within its scope." Robinson v. Commonwealth, 274 Va.
45, 51, 645 S.E.2d 470, 473 (2007)(citing Farrakhan v.
Commonwealth, 273 Va. 177, 181, 639 S.E.2d 227, 230 (2007);
Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338
(1983)).
30
Guided by these principles, I believe paragraph two of
Code § 15.2-852(A) should be read to mean, as it plainly
states, that if a member of a board of supervisors has a
"business or financial interest" with any of the named
individuals, which specifically "involv[es] the relationship of
employee-employer, agent-principal, or attorney-client," then
the board member must disclose "such relationship" and decline
to participate in the hearing.
Contrary to the majority, I do not read the operative
limiting language of "relationship of employee-employer, agent-
principal, or attorney-client," to apply only to the phrase
"any of the other persons above specified." Code § 15.2-
852(A). That phrase is simply a shorthand identifier of the
individuals listed in subparts (iii) and (iv) of the first
sentence of subsection A, who are in the same class as the
other individuals listed in paragraph two. It is apparent that
the legislature would use such shorthand phraseology in
subsection B because it used this same shorthand twice in
subsection A (in the second and third sentences).
Nor do I agree that the definition of "business or
financial relationship" in the first paragraph of the statute
(in describing the circumstances when a board member need only
make a disclosure) can be imported to paragraph two by
substituting the term "business or financial relationship" for
31
"business or financial interest." The legislature plainly used
different terms in each paragraph. With the former, the
legislature identified a wide range of "relationships" that a
board member would be required to disclose. With the latter,
the legislature identified a much more limited range of
"interests" requiring recusal of the board member by limiting
such "interests" to those "involving the relationship of
employee-employer, agent-principal, or attorney-client."
Accordingly, I believe we are bound by the language as
plainly stated in the second paragraph of Code § 15.2-852(A)
and may look no further to determine its meaning. See Doss,
254 Va. at 370, 492 S.E.2d at 446 ("In the absence of
ambiguity, a court may look only to the words of the statute to
determine its meaning, and when the meaning is plain, resort to
rules of construction, legislative history, and extrinsic
evidence is impermissible." (citing Harrison & Bates, Inc. v.
Featherstone Assocs. Ltd. P'ship, 253 Va. 364, 368, 484 S.E.2d
883, 885 (1997); Virginia Dept. of Labor v. Westmoreland Coal
Co., 233 Va. 97, 99, 353 S.E.2d 758, 760 (1987); Brown v.
Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). I thus
conclude that, because the positions Supervisors Hudgins and
McKay had with the WMATA Board of Directors did not involve the
relationship of employee-employer, agent-principal, or
attorney-client, they were not required under Code § 15.2-
32
852(A) to recuse themselves from voting on the subject
application for a special exception.
For these reasons, I concur.
33