Lucy v. County of Albemarle, Record No. 980770

• Decision Date: 11 June 1999
• Docket Number: Record No. 980771.,Record No. 980770
• Parties: William H. LUCY, et al. v. COUNTY OF ALBEMARLE. City of Charlottesville v. County of Albemarle.
• Court: Virginia Supreme Court

516 S.E.2d 480

258 Va. 118

William H. LUCY, et al. v. COUNTY OF ALBEMARLE. City of Charlottesville v. County of Albemarle.

Record Nos. 980770, 980771.

Supreme Court of Virginia.

June 11, 1999.

Edward B. Lowry (Garrett M. Smith; Michie, Hamlett, Lowry, Rasmussen & Tweel; on brief), Charlottesville, for appellants (Record No. 980770).

Carter Glass, IV (W. Clyde Gouldman, II, City Attorney; John S. West; Mays & Valentine, on briefs), Richmond, for appellant (Record No. 980771).

C. Richard Cranwell (David B. Bullington; Larry W. Davis, County Attorney; Cranwell, Moore & Bullington, on brief), Roanoke, for appellee.

Present: All the Justices.

KOONTZ, Justice.

In these consolidated appeals, we consider whether a citizen-initiated petition for reversion of an independent city to town status under Code § 15.2-4102 (formerly Code § 15.1-965.10(B)) was properly filed in the circuit court prior to the notice specified in Code § 15.2-2907(A) (formerly Code § 15.1-945.7(A)) being given to the Commission on Local Government and the affected local governments.¹

The parties do not dispute the legislative history of these and other relevant statutes or the procedural posture of the cases. However, the specific statutes in question are in apparent conflict and susceptible to differing constructions. Thus, the issue framed by these appeals is uniquely one of necessary judicial construction to reconcile these statutes consistent with legislative intent. Accordingly, in order to place the facts and the specific issue of these appeals in proper focus, we begin our analysis with a review of the legislative background of the general statutory scheme concerning changes in the boundaries, structure, and status of counties, cities, and towns in this Commonwealth.

Although it has been almost three decades since the General Assembly first passed legislation to address the problems of relations among local governments within this Commonwealth, the underlying concerns with respect to this issue remain unchanged. In County of Rockingham v. City of Harrisonburg, 224 Va. 62, 294 S.E.2d 825 (1982), we said:

Relations among units of local government pose problems of continuing concern to the General Assembly. Different people in different communities have different needs for different reasons. Government seldom has sufficient resources to provide all it would like to give its citizens and never all they would like to receive. Necessarily, needs and means must be balanced and compromises must be reached. How well local governments succeed in promoting the common weal depends in large part upon how they are organized and how they interact with their neighbors.

Id. at 71, 294 S.E.2d at 828-29.

To address these concerns, in 1971 the General Assembly authorized a study by the Commission on City-County Relationships. Acts 1971, c. 234. As a result of that study, the General Assembly enacted comprehensive legislation in 1979 with the purpose and intent "to create a procedure whereby the Commonwealth will help ensure that all of its localities are maintained as viable communities in which their citizens can live." Code § 15.2-2900. To carry out this purpose and intent, the General Assembly established the Commission on Local Government. Id.

The General Assembly initially mandated and empowered the Commission on Local Government, inter alia, "[t]o investigate, analyze, and make findings of fact ... as to the probable effect" of any proposed annexation, declaration of immunity from annexation, establishment of a town or independent city, or transition from a county to a city. Code § 15.2-2903(4). Relevant to the present appeals, the General Assembly in 1988 amended the former version of this statute to include as an additional responsibility of the Commission on Local Government the administrative review "of any proposed action. . . [t]o make a transition from city status to town status." Code § 15.2-2903(4)(e).

The procedure for invoking an administrative review by the Commission on Local Government on matters within its purview is set out in Code § 15.2-2907, one of the two statutes principally at issue in the present appeals. In pertinent part, that statute provides:

A. No locality or person shall file any action in any court in Virginia ... to make a transition from city status to town status, without first notifying the Commission and all local governments located within or contiguous to, or sharing functions, revenue, or tax sources with, the locality proposing such action. Upon receipt of the notice the Commission shall hold hearings, make investigations, analyze local needs and make findings of fact and recommendations. . . No court action may be filed until the Commission has made its findings of facts.

. . .

B. The Commission shall report, in writing, its findings and recommendations to the affected localities, any other localities likely to be affected ... and to any court which may subsequently consider the action.

. . . .

Before making the report the Commission shall conduct hearings at which any interested person may testify. Prior to the hearing, the Commission shall publish a notice of the hearing once a week for two successive weeks in a newspaper of general circulation in the affected counties and cities.

(Emphasis added.)

On its face, Code § 15.2-2907 is a clear directive expressing the intent of the General Assembly that all proposed actions to make a transition from city status to town status be subject to an administrative hearing and review by the Commission on Local Government prior to any court action being filed. Such hearing and review is initiated by notice to the Commission on Local Government. The statute mandates that all affected local governments also be notified of the proposed action and that the Commission on Local Government publish notice to the general public prior to its hearing on the matter.

In 1988, in addition to including the responsibility of the Commission on Local Government to review actions concerning transition from city status to town status set out in Code § 15.2-2907, the General Assembly also enacted the statutory scheme for instituting such actions. Under that statutory scheme, now found at Code § 15.2-4100 et seq., there are two methods by which an action for reversion from city status to town status may be instituted. Code § 15.2-4101 provides that:

A. Any city in this Commonwealth with a population at the time of the latest United States decennial census of less than 50,000 people, after fulfilling the requirements of Chapter 29 (§ 15.2-2900 et seq.), may by ordinance passed by a recorded majority vote of all the members thereof, petition the circuit court for the city, alleging that the city meets the criteria set out in § 15.2-4106 for an order granting town status to the city. The circuit court with which the petition is filed shall notify the Supreme Court, which shall appoint a special court to hear the case as prescribed by Chapter 30 (§ 15.2-3000 et seq.) of this title.

B. Before instituting a proceeding under this chapter for a grant of town status, a city shall serve notice on the county attorney, or if there is none, on the attorney for the Commonwealth, and on the chairman of the board of supervisors of the adjoining county that it will, on a given day, petition the circuit court for a grant of town status. The notice served on each official shall include a certified copy of the ordinance. A copy of the notice and ordinance, or a descriptive summary of the notice and ordinance and a reference to the place within the city or adjoining county where copies of the notice and ordinance may be examined, shall be published at least once a week for four successive weeks in some newspaper having general circulation in the city and adjoining county. The notice and ordinance shall be returned after service to the clerk of the circuit court. Certification by the owner, editor or manager of the newspaper publishing the notice and ordinance shall be proof of publication.

(Emphasis added.)

Code § 15.2-4102 provides that:

Voters equal in number to fifteen percent or more of the registered voters of the city as of January 1 of the year in which the petition is filed may petition the circuit court for the city, stating that it is desirable that such city make the transition to town status. All of the signatures on the petition shall have been made and filed within a twelve-month period. A copy of the petition shall be served on the city attorney and the county attorney, or if there is none, on the attorney for the Commonwealth for the county and on the mayor of the city and the chairman of the board of supervisors of the adjoining counties. A copy of the petition shall be published at least once a week for four successive weeks in a newspaper having general circulation in the city and the adjoining county. The case shall proceed in all respects as though instituted in the manner. prescribed in § 15.2-4101, and the court shall forthwith refer the petition to the Commission on Local Government for review pursuant to Chapter 29 (§ 15.2-2900 et seq.).

(Emphasis added.)

By express language, before a city may file its petition for reversion to town status in the circuit court, Code § 15.2-4101 requires the city to comply with the notice provisions of Code § 15.2-2907(A). This requirement is harmonious with the prohibition contained in Code § 15.2-2907(A) against the "locality . . . fil[ing] any action in any court in Virginia . . . to make a transition from city status to town status, without first notifying the Commission and all [affected] local governments."

The material distinction between the filing of a city-initiated petition for reversion to town status under Code § 15.2-4101 and the filing of a citizen-initiated petition for such reversion under Code § 15.2-4102 arises in the final sentence of the latter statute, which provides that "[t]he case shall proceed in all respects...