Friends of Clark Mountain Foundation, Inc. v. Board of Sup'rs of Orange County, s. 901107

• Decision Date: 07 June 1991
• Docket Number: 901118,Nos. 901107,s. 901107
• Citation: 406 S.E.2d 19,242 Va. 16
• Parties: FRIENDS OF CLARK MOUNTAIN FOUNDATION, INC., et al. v. BOARD OF SUPERVISORS OF ORANGE COUNTY, et al. T. Coleman ANDREWS, III, et al. v. BOARD OF SUPERVISORS OF ORANGE COUNTY, et al. Record
• Court: Virginia Supreme Court

Page 19

406 S.E.2d 19

242 Va. 16

FRIENDS OF CLARK MOUNTAIN FOUNDATION, INC., et al. v. BOARD OF SUPERVISORS OF ORANGE COUNTY, et al.

T. Coleman ANDREWS, III, et al. v. BOARD OF SUPERVISORS OF ORANGE COUNTY, et al.

Record Nos. 901107, 901118.

Supreme Court of Virginia.

June 7, 1991.

C. Ridgeway Schuyler, II, Somerset, V.R. Shackelford, III (Frank A. Thomas, III, Shackelford, Honenberger, Thomas & Willis, on brief, Orange), for appellants.

David E. Constine, III (Carter Glass, IV, Richmond, Charles W. Bowman, Orange, Mays & Valentine, Richmond, and Higginbotham & Higginbotham, on brief, Orange), for appellee Virginia Turbo Power Systems-II, L.P.

Atwell W. Somerville (Somerville, Moore, Somerville & Cutright, on brief), Orange, for appellee Bd. of Supervisors of Orange County.

Present: All the Justices.

COMPTON, Justice.

In this zoning controversy, we consider whether the trial court erred by dismissing a suit against a local governing body upon the ground that necessary parties were not joined within the time fixed by Code § 15.1-493(G). The subsection provides:

"Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty days of such decision with the circuit court having jurisdiction of the land affected by the decision. However, nothing in this subsection shall be construed to create any new right to contest the action of a local governing body."

In November 1989, appellee Board of Supervisors of Orange County granted an application for the rezoning of a 25-acre tract of land from agricultural to industrial use, and granted a special use permit. The applicants were George D. Carter and Nancy C. Carter, who are owners of the tract, and appellee Virginia Turbo Power Systems-II, L.P., holder of an option to acquire the tract. Turbo Power plans to build and operate a cogeneration power facility on the property.

In December 1989, within 30 days of the Board's decision, appellants Friends of Clark Mountain Foundation, Inc., and T. Coleman Andrews, III, and others (collectively, the plaintiffs), owners of realty in the vicinity of the tract in question, filed a petition for declaratory judgment in equity naming the Board as the sole defendant. Assigning numerous grounds, the plaintiffs sought a declaration that the Board's action in rezoning the tract and in issuing the special use permit was null and void because it was unreasonable, arbitrary, and capricious.

In January 1990, the trial court granted Turbo Power's request to intervene and it, as well as the Board, filed pleas in bar and motions to dismiss. In the pleas and motions, the Board and Turbo Power took the position that the Carters and Turbo Power were necessary parties to the suit and, because the suit was not instituted against them within the statutory 30-day period, the suit was time-barred.

Following argument of the requests to dismiss, the trial court ruled in an April 1990 letter opinion that the Carters and Turbo Power "are clearly necessary parties." The court noted: "The action taken in this case was rezoning of private property, at the request of the landowners and the option holder, and granting of a special use permit sought by the option holder to develop the property." Under those circumstances, the court reasoned, "a challenge to a rezoning granted at the request of the owner of the land rezoned necessarily involves the interests of those who sought--and obtained--the rezoning as well as the governing body of the political subdivision granting the rezoning." The court concluded "that since the necessary parties were not joined within the thirty-day period and their absence is jurisdictional, the suit must be dismissed."

We awarded two groups of the plaintiffs separate appeals from the May 1990 final decree dismissing the suit and consolidated the appeals.

The two main questions on appeal are: (1) In a suit challenging both the rezoning of a specific tract of land and the issuance of a special use permit with respect to the tract, are the applicants for the rezoning and the permit, including the owners of the tract, necessary parties to the suit? (2) If the applicants are necessary parties, and were not made parties within the 30-day period set forth in Code § 15.1-493(G), must the suit be dismissed as untimely?

For purposes of this appeal, we will assume, but not decide, that the applicants for the rezoning action in this case are necessary parties to the litigation. Thus, we address only the second question.

Decision of the second issue necessarily requires us to determine the nature of the 30-day time period provided in § 15.1-493(G). Implicit in the trial court's decision is the ruling that the 30-day period is a statute of limitations, jurisdictional in effect.

"Special" statutes of limitation have jurisdictional effect. They are included in statutes creating a new right and become elements of that right, limiting its availability; compliance with such a statute is a condition precedent to prosecution of a claim. Commonwealth v. Owens-Corning Fiberglas Corp., 238 Va. 595, 598-99, 385 S.E.2d 865, 867 (1989); Harper v. City of Richmond, 220 Va. 727, 738, 261 S.E.2d 560, 567 (1980). Another type of statute of limitations is a "statute of repose." This involves a legislatively mandated limitation which reflects a policy determination that a point in time arrives beyond which a potential defendant should be immune from liability for past conduct. School Bd. of the City of Norfolk v. United States Gypsum Co., 234 Va. 32, 37, 360 S.E.2d 325, 327-28 (1987). Of course, there is a third type of limitation, the so-called "pure" or procedural statute of limitations, which serves only to place a time limit upon assertion of a remedy and furnishes an affirmative defense that may be waived. Owens-Corning, 238 Va. at 598, 385 S.E.2d at 867.

In our opinion, the § 15.1-493(G) 30-day period is none of the above. We are drawn to this conclusion by the precedent of Board of Supervisors of Fairfax County v. Board of Zoning Appeals, 225 Va. 235, 302 S.E.2d 19 (1983).

In that case, the issue was whether the successful applicant before a board of zoning appeals (BZA) must be made a party to the certiorari proceeding set forth in Code § 15.1-497 within the 30-day period prescribed by the Code section. ("Any person ... aggrieved by any decision of the board of zoning appeals ... may present to the circuit court ... a petition specifying the grounds on which aggrieved within thirty days after the filing of the decision in the office of the board.")

Contesting the BZA's decision relating to a use permit, the county governing body filed in the trial court a petition for certiorari, naming the BZA as the only defendant. The trial court ruled that the applicant was an indispensable party to the proceeding and, because he had not been joined as a party within the 30-day period, the action should be dismissed.

On appeal, the BZA, contending the trial court correctly held that the certiorari action was barred, argued that § 15.1-497 "both confers a right and provides the time within which the right may be exercised; hence, the thirty-day period prescribed by the statute is a limitation upon the right as well as the remedy, and the circuit court is without jurisdiction if the limitation is not met." Id. at 238, 302 S.E.2d at 20. The BZA argued that because the proceeding was not commenced against the applicant until...