Committee of v. City of Norfolk ( 2007 )

Present: All the Justices
COMMITTEE OF THE PETITIONERS FOR
REFERENDUM, BY WILLIAM S. KERRY,
AND OTHERS
v. Record No. 061329 OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2007
CITY OF NORFOLK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Swersky, Judge
In this appeal we consider whether the circuit court
erred in holding that a petition filed in a referendum process
did not comply with the requirements of that process and in
allowing certain parties to intervene and challenge the
validity of the petition.
Facts and Proceedings
Since the 1980s, the City of Norfolk has targeted the
Ocean View area for revitalization. As part of that effort,
on July 19, 2005, the Norfolk City Council adopted four
related ordinances affecting 17 acres of land owned by the
Norfolk Redevelopment and Housing Authority (NRHA) and 3
privately owned acres (the Property). The first, Ordinance
No. 41,934, closed a portion of 4th Bay Street that runs
directly through the Property. The second, Ordinance No.
41,935, amended the City's zoning ordinance to include a new
planned development district designed specifically for the
Property. The third, Ordinance No. 41,936, mandated certain
open space and public area and facility requirements. The
fourth, Ordinance No. 41,937, rezoned the property from R-12
(medium-density residential) and IN-1 (institutional) to the
new planned development zoning category created via Ordinance
No. 41,935. Under the ordinances, only single-family
dwellings and town homes would be constructed and at least
one-half of the Property would be dedicated as open space.
A number of Norfolk residents opposed the development of
the Property as a planned residential community. The
residents decided to utilize the referendum process set out in
the Norfolk City Charter to repeal the ordinances by popular
vote. The referendum process required that the residents file
documents announcing their intent to circulate the petition
necessary to place the matter on the referendum ballot, secure
a specified number of signatures for that petition, and
present the petition to the City Council. Norfolk City
Charter § 35. If the City Council did not repeal the
ordinances within 30 days, the residents were required to
request that the petition be sent to the circuit court for
entry of an order placing the question on the ballot and
setting the election date. Norfolk City Charter § 36.
The residents formed "The 'Bay Oaks Parks' Committee of
the Petitioners" (the Committee) and filed an amended notice
of intent to circulate and file a referendum petition (the
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Petition) on July 25, 2005. The Petition stated that it was a
petition "to repeal Ordinance No. 41,934, Ordinance No.
41,935, Ordinance No. 41,936, and Ordinance No. 41,937 adopted
on July 19, 2005." The Committee filed the Petition with the
clerk of the City of Norfolk on August 18, 2005. The City
Council did not repeal the ordinances within thirty days and,
at the Committee's request, the Petition was sent to the Clerk
of the Circuit Court of the City of Norfolk on September 20,
2005. After the Clerk of the Court certified that the
Petition contained the requisite number of signatures of
qualified voters, the Committee then presented the Petition to
the Circuit Court.
The City and NRHA each filed a motion to intervene, which
the circuit court granted over the Committee's objections.
The matter was set for an evidentiary hearing on February 23,
2006. At that hearing, the circuit court dismissed the claim
raised by the City and NRHA that the Petition was invalid
because the Committee used false and misleading statements and
promotional materials in the circulation process but held, as
a matter of law, that the Petition was invalid because it
presented all four ordinances in a single petition. The
circuit court entered a final order declining to set a
referendum election and dismissing the Petition with
prejudice.
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The Committee filed a timely appeal to this Court
asserting the circuit court erred in 1) granting the City and
NRHA leave to intervene; 2) finding that the Petition was
legally defective because the Petition sought repeal of four
related Ordinances in a single petition instead of listing
each of the four challenged ordinances in a separate petition;
and 3) granting summary judgment for the City and NRHA sua
sponte. We granted the Committee an appeal.
Discussion
I. Motion to Intervene
We first address the Committee's assertion that the
circuit court erred in granting the City's and NRHA's motions
to intervene. The Committee claims the motions to intervene
were untimely because they were not filed until nearly two
months after the City received notice that the Petition was to
be circulated and over one month after the completed Petition
was officially presented to the City Council.
We apply an abuse of discretion standard when reviewing a
circuit court's decision to grant a motion to intervene. See
Hudson v. Jarrett, 269 Va. 24, 33, 606 S.E.2d 827, 831 (2005)
(granting motion to intervene is within discretion of court
but intervenor must meet requirements for intervention). The
Committee does not question the interests of the City and NRHA
in the subject matter of these proceedings; its challenge is
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limited solely to the timeliness of the intervention. The
circuit court found the interventions timely "since at any
time prior to the City Council's completion of the
reconsideration mandated by law, the issue could have been
made moot and . . . there are no statutory, charter, or
constitutional provisions requiring earlier filing."
The circuit court's rationale reflects a reasoned
evaluation of the circumstances. The fact that the City or
NRHA could have brought its objections to the Petition to the
attention of the Committee at some earlier time is not
relevant to whether the intervention in circuit court was
timely. Accordingly, we hold that the circuit court did not
abuse its discretion in granting the motion to intervene.
II. Petition for Referendum
"A referendum is 'an exercise by the voters of their
traditional right through direct legislation to override the
view of their elected representatives as to what serves the
public interest.' " R.G. Moore Bldg. Corp. v. Committee for
the Repeal of Ordinance R(C)-88-13, 239 Va. 484, 489, 391
S.E.2d 587, 589 (1990) (quoting City of Eastlake v. Forest
City Enters., Inc., 426 U.S. 668, 678 (1976)). The referendum
process "is a means for direct political participation,
allowing the people the final decision, amounting to a veto
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power, over enactments of representative bodies." Id.
(quoting City of Eastlake, 426 U.S. at 673).
Petitions for initiating the referenda process are the
subject of § 35 of the City Charter. That section states that
a petition does not have to contain the text of the "ordinance
or ordinances" sought to be repealed. Norfolk City Charter
§ 35. This language implies but does not specifically address
whether a single petition may be submitted for the repeal of
more than one ordinance.
In the absence of clear legislative direction on this
issue, the City and NRHA argue, and the circuit court agreed,
that because a referendum is "legislative in nature and
effect," Collins v. City of Norfolk, 244 Va. 431, 434, 422
S.E.2d 782, 783 (1992), the petition is subject to the same
restrictions that apply to a City ordinance. One of those
requirements is that City ordinances "shall be confined to one
subject." Norfolk City Charter § 14.1. Applying this
section, the City contends that the circuit court was correct
in concluding that because the four ordinances contained in
the Petition could not be considered in a single ordinance,
they likewise could not be combined in a single petition for
referendum, and therefore, the Petition was invalid. We
disagree with this analysis.
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First, nothing in the City Charter indicates that the
provisions applicable to City ordinances are also applicable
to a petition for referendum. Furthermore, the City and NRHA
equate the petition for referendum with the referendum itself.
However, the petition is the mechanism for placing the issue
before the electorate; the referendum is the vote of the
electorate. More importantly, nothing in the Petition
precludes a separate vote on each of the ordinances referenced
in the Petition.
The Committee contended at trial and reiterated here that
the Petition only ensures the placement of the ordinances on
the ballot and that each ordinance could be voted upon
independently. Code § 24.2-684 specifically states that
"[t]he court order calling a referendum shall state the
question to appear on the ballot." This provision does not
reference the petition and, contrary to the argument of the
City and NRHA, the language of the Petition reciting the
ordinances in the conjunctive, does not require the circuit
court to structure the ballot to require a single vote on the
combined ordinances.
The Committee's Petition complied with all stated
requirements of the City Charter and the Code. The Petition
was not invalid because it listed multiple ordinances and the
Committee was not required to circulate a separate petition
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for each of the four challenged ordinances. Accordingly, the
circuit court erred in finding the Petition invalid and in
declining to certify and order the referendum requested by the
Committee.*
In summary, we will affirm that portion of the judgment
of the circuit court allowing the City and NRHA to intervene.
We will reverse that portion of the judgment holding that the
Petition was invalid, and remand the case for further
proceedings.
Affirmed in part,
reversed in part,
and remanded.
*
In light of this holding, we need not address whether
the circuit court improperly granted summary judgment for the
City and NRHA.
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