Covel v. Town Of Vienna

• Decision Date: 10 June 2010
• Docket Number: Record No. 091343.
• Citation: 694 S.E.2d 609
• Court: Virginia Supreme Court
• Parties: Michael W. COVEL, et al.v.TOWN OF VIENNA.

694 S.E.2d 609

Michael W. COVEL, et al.v.TOWN OF VIENNA.

Record No. 091343.

Supreme Court of Virginia.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Debra Fitzgerald-O'Connell (Erin Fitzgerald O'Connell, on briefs), for appellants.

John D. McGavin (Amy A. Lombardo; Steven D. Briglia, Town Attorney; Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice WILLIAM C. MIMS.

In this appeal we consider the validity of Vienna Town Code (“VTC”) §§ 18-258 to -280 (the “Historic Districts Ordinance”) and §§ 18-280.1 to -280.13 (the “WHHD Ordinance”), which create the Windover Heights Historic District (the “WHHD”). We also consider an appeal from the denial of a certificate of appropriateness under the WHHD Ordinance.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

The circuit court decided this case after a bench trial; consequently, we state the facts in the light most favorable to the Town of Vienna, the prevailing party below. Virginia Home for Boys & Girls v. Phillips, 279 Va. 279, 282, 688 S.E.2d 284, 285 (2010).

This appeal arises from three consolidated cases involving six parcels of land in the WHHD. Michael Covel (“Michael”) owns two adjoining parcels, 130 Pleasant Street, N.W. and 346 Windover Avenue, N.W. Jerome and Johanna Covel own two parcels, 224 Walnut Lane, N.W. and 222 Lovers Lane, N.W. Matthew and Susan Stich own 200 Walnut Lane, N.W.¹ PMY Associates (“PMY”) owns 210 Lawyers Road, N.W.

A. CASE NO. CH-2003-184618

In February 2003, Michael applied to the Windover Heights Board of Review for a certificate of appropriateness (“COA”) to erect a fence on his parcels. His application stated his name, address, and telephone number, and the date. It incorporated a plat of the fence. Michael did not respond to any other questions on the application form, including those requesting a list of adjacent properties; proposed materials, colors, and finishes of the fence; and proposed landscaping changes, if any. The application omitted required dimensional plans showing existing and proposed buildings, structures, fences, or signs on the parcels and photographs of the proposed fence location.

The board of review considered Michael's COA application initially. At the board's hearing, he declined to supplement the information provided. The board then rejected his application as incomplete and informed him “more information is need[ed] to review for the application [but] that the Board has no objection to the building of a fence.”

Michael appealed to the town council. He again declined to provide additional information. Following a hearing the council denied his application.

Michael then appealed to the circuit court. He challenged the denial of his COA application and sought a declaratory judgment that (a) the WHHD Ordinance was unconstitutionally vague, (b) the Historic Districts Ordinance was enacted in violation of Code § 15.2-2306, and (c) the WHHD Ordinance was enacted in violation of VTC § 18-261.² The Town demurred and the circuit court ruled that the WHHD Ordinance was not unconstitutionally vague on its face. There is no transcript of the circuit court's hearing in the record and Michael did not note any objection to the ruling on the order. No further proceedings relevant to this appeal were conducted prior to consolidation.

B. CASE NO. CH-2003-186629

In January 2003, before he applied for the COA, Michael requested that his Pleasant Street parcel be withdrawn from the WHHD. While Michael's COA application was pending before the board of review and his request to remove his Pleasant Street parcel from the WHHD was pending before the town council, the Landowners simultaneously requested that the other parcels they owned also be removed from the WHHD. The town council denied all these requests.

Thereafter the Landowners jointly filed a pleading in the circuit court in which they appealed from the denial of their requests to withdraw their parcels from the WHHD and sought declaratory judgment that the ordinances were invalid on the grounds Michael had asserted.³ No further proceedings relevant to this appeal were conducted prior to consolidation.

C. CASE NO. CL-2006-7105

In November 2005, while both Case Nos. CH-2003-184618 and CH-2003-186629 were pending before the circuit court, PMY requested that its parcel be removed from the WHHD. The town council denied that request, whereupon PMY appealed to the circuit court. Although the grounds for appeal were substantially identical to Case Nos. CH-2003-184618 and CH-2003-186629, PMY did not seek declaratory relief challenging the validity of the ordinances. No proceedings relevant to this appeal were entered prior to consolidation.

D. THE CONSOLIDATED PROCEEDING

In January 2008 the circuit court entered an order consolidating the cases with the agreement of the parties. That order expressly incorporated into the consolidated proceeding the court's earlier ruling in Case No. CH-2003-184618 that the WHHD Ordinance was not unconstitutionally vague on its face. Neither the Landowners nor PMY noted any objection to the ruling on the order. After a three-day bench trial in October 2008, the circuit court entered a final order dismissing all the appeals and denying the Landowners declaratory relief. We awarded the Landowners and PMY this appeal.

II. ANALYSIS

A. APPEALS FROM THE DENIAL OF MICHAEL'S COA AND THE LANDOWNERS' AND PMY'S REQUESTS FOR REMOVAL OF THEIR PARCELS FROM THE WHHD

Our review of the decision of a governing body relating to a historic district is limited by statute to “whether that decision is ‘arbitrary and constitutes an abuse of discretion,’ or ‘is contrary to law.’ ” Norton v. City of Danville, 268 Va. 402, 407, 602 S.E.2d 126, 129 (2004) (quoting Code § 15.2-2306(A)(3)). The decision of the governing body is presumed to be correct. Id. at 408, 602 S.E.2d at 129-30. The party challenging the decision has the burden of proving “it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare.” Id. at 409, 602 S.E.2d at 130 (quotation marks omitted).

Where presumptive reasonableness is challenged by probative evidence of unreasonableness, the challenge must be met by some evidence of reasonableness. If evidence of reasonableness is sufficient to make the question fairly debatable, the ordinance “must be sustained”. If not, the evidence of unreasonableness defeats the presumption of reasonableness and the ordinance cannot be sustained.

Id. (quoting Board of Supervisors v. Snell Constr. Corp., 214 Va. 655, 659, 202 S.E.2d 889, 893 (1974)). An issue is “fairly debatable when the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions.” Id. (quoting Board of Supervisors v. Williams, 216 Va. 49, 58, 216 S.E.2d 33, 40 (1975)).

On appeal, neither the Landowners nor PMY point to any evidence in the record to rebut the presumption of validity. Rather, they assert that the Town's decision to deny Michael's COA application and their requests to remove their parcels from the WHHD are unreasonable, arbitrary, or capricious solely because the underlying ordinances are invalid. We previously have held that we may not consider whether the underlying ordinance is invalid when considering an appeal from a governing board's denial of a COA. Norton, 268 Va. at 407-08, 602 S.E.2d at 129 (“Norton's challenge to the underlying ordinance ... is barred from consideration in judicial review of the city council's action concerning the certificate of appropriateness.”). The appropriate method for such challenges is by an action against the governing body. Id. at 408 n. 4, 602 S.E.2d at 129 n. 4 (citing Board of Zoning Appeals v. University Square Assocs., 246 Va. 290, 295 n. 2, 435 S.E.2d 385, 388 n. 2 (1993)).

Accordingly, we find no error in the judgment of the circuit court approving the Town's denial of Michael's COA and the requests to remove parcels from the WHHD. We now turn to the Landowners' appeal from the dismissal of their claims for declaratory relief.⁴

B. THE ENACTMENT OF THE HISTORIC DISTRICTS AND WHHD ORDINANCES

Whether an ordinance has been enacted lawfully is a question of law we review de novo. Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 416 & n. 9, 690 S.E.2d 84, 87 & n. 9 (2010).

The Landowners assert that the Historic Districts Ordinance is invalid because it exceeds the authority delegated by the General Assembly, specifically because it refers only to an “area” rather than buildings or structures. They argue that the authorizing statute at the time the Town adopted the ordinance former Code § 15.1-503.2,⁵ allowed a locality to enact a historic district ordinance only if it set forth a historic landmark established by the Virginia Historic Landmarks Commission or some other building or structure with historic, architectural, or cultural significance. We disagree.

“[C]ourts apply the plain meaning of a statute unless the terms are ambiguous or applying the plain language would lead to an absurd result.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006) (citation omitted). A statute is ambiguous “if the text can be understood in more than one way or refers to two or more things simultaneously or when the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness.” Id. at 227 n. 8, 623 S.E.2d at 926 n. 8 (citation, internal quotation marks, and alterations omitted). An absurd result describes “situations in which the law would be internally inconsistent or otherwise incapable of operation.” Id. at 227 n. 9, 623 S.E.2d at 926 n. 9 (quotation marks omitted). When statutory language is unambiguous and does not lead to absurd results, “courts may not interpret the language in a way that effectively holds that the General Assembly did not mean what it actually expressed.” Hicks v. Mellis...