Miller v. Highland County

• Decision Date: 14 September 2007
• Docket Number: Record No. 062489.,Record No. 062111.
• Citation: 650 S.E.2d 532
• Parties: Lucile Swift MILLER, et al. v. HIGHLAND COUNTY, et al. Tom Brody, et al. v. Highland County, et al.
• Court: Virginia Supreme Court

650 S.E.2d 532

Lucile Swift MILLER, et al. v. HIGHLAND COUNTY, et al.

Tom Brody, et al. v. Highland County, et al.

Record No. 062111.

Record No. 062489.

Supreme Court of Virginia.

September 14, 2007.

David S. Bailey, Manassas, for appellants.

Gregory J. Haley, Roanoke; Brian K. Brake, Harrisonburg (Melissa Ann Dowd, County Attorney; John W. Flora, Harrisonburg; Monica Taylor Monday, Roanoke; Mark D. Obenshain; Gentry Locke Rakes & Moore; Lenhart Obenshain, on briefs), for appellees.

Present: HASSELL, C.J., KEENAN, KOONTZ, LEMONS, and AGEE, JJ., and CARRICO and LACY^*, S.JJ.

OPINION BY Justice BARBARAMILANO KEENAN.

In these appeals, two issues assigned as cross-error determine the outcome of the cases. Those issues are 1) whether a county board of supervisors is a required party defendant in a legal action contesting the board's decision to grant a conditional use permit; and 2) whether neighboring landowners may file a declaratory judgment action contesting a county planning commission's decision that a certain conditional use is in "substantial accord" with that county's comprehensive plan.

I. FACTUAL BACKGROUND

In July 2004, Highland New Wind Development, LLC (New Wind) filed an application seeking a conditional use permit (CUP application) to build an electric generation substation in the County on property that is located in an agricultural zoning district, zone "A-2," as provided in the Highland County Zoning Ordinance (zoning ordinance). In addition to the substation, New Wind sought approval to construct 20 wind turbines about 400 feet in height, a height that exceeds the maximum height permitted by the zoning ordinance.

The zoning ordinance designates zone "A-2" as a district in which construction of an electric generation substation is permitted only after "the [g]overning body finds, as a fact, that the proposed use is compatible with surrounding uses, is consistent with the intent of this [o]rdinance and of the Land Use Element of the Comprehensive Plan, is in the public interest, and will comply with all other provisions of law and ordinances of Highland County or the Town of Monterey." The Board of Supervisors (the Board) approved an amendment to the zoning ordinance (the height amendment), which authorized the Board to issue conditional use permits allowing structures that exceed the maximum heights provided in the zoning ordinance.

After conducting a public hearing on the CUP application, the Board adopted a resolution in July 2005, granting New Wind a conditional use permit (the CUP) for construction of the wind turbine project. In its resolution, the Board made several "findings," including that the CUP was compatible with surrounding uses, was consistent with the intent of the zoning ordinance and the land use element of the comprehensive plan, and would be in compliance with all other statutes and ordinances. Additionally, the Board's resolution stated, "[t]he authority granted by this [p]ermit shall be conditioned on the receipt of all required state and federal approvals and review pursuant to [] Code § 15.2-2232."

In February 2006, New Wind filed an application asking that the planning commission review the CUP under the provisions of Code § 15.2-2232. After conducting a public hearing on New Wind's application, the planning commission determined that the CUP was in "substantial accord" with the comprehensive plan as required by Code § 15.2-2232.

II. MILLER'S PROCEEDINGS IN CIRCUIT COURT

Lucile Swift Miller and several other owners of property adjoining the proposed wind turbine site (collectively, Miller) filed a bill of complaint for declaratory judgment in the circuit court, alleging that the Board acted in an arbitrary and capricious manner, and without authority, in approving the height amendment. Miller named "Highland County, Virginia" as the sole defendant in the bill of complaint.

Pendleton Stokes Goodall, III, and several other landowners adjoining the proposed wind turbine site (collectively, Goodall), filed a separate bill of complaint for declaratory judgment against "Highland County, Virginia," New Wind, and the owners of the wind turbine project site, Tamarack of Highland, LLC, and Red Oak Ranch, LLC (Tamarack and Red Oak). Goodall alleged that the CUP was invalid because the planning commission had not made a determination whether the CUP was in "substantial accord" with the comprehensive plan before the Board issued the CUP and that, therefore, the CUP did not satisfy the requirements of Code § 15.2-2232. Goodall also alleged, among other things, that the CUP was inconsistent with the comprehensive plan and was an arbitrary and capricious exercise of the Board's power. The circuit court consolidated Miller's and Goodall's cases for trial.

New Wind, Red Oak, and Tamarack (collectively, New Wind) filed a demurrer and a plea in bar, asserting that the actions filed by Miller and Goodall (collectively, Miller) were barred because Miller failed to name the Board as a party to the actions. The circuit court overruled the demurrer and plea in bar.

All parties filed motions for summary judgment. After conducting a hearing, the circuit court granted partial summary judgment in favor of Highland County and New Wind, holding that the height amendment was valid and that the CUP was properly issued even though the planning commission did not make its "substantial accord" determination under Code § 15.2-2232 before the Board issued the CUP. The circuit court denied summary judgment and ordered a bench trial on the separate issues whether the Board made factual findings that complied with the requirements of the ordinance before the Board issued the CUP and whether the Board's actions were arbitrary and capricious.

After a trial in which several witnesses testified concerning the subjects the Board considered when it granted the CUP, the circuit court upheld the Board's decision. The circuit court concluded that the Board made factual findings as required by the ordinance, that the evidence was conflicting whether the Board's decision to issue the CUP was "reasonable," and that, as a result, the Board's decision issuing the CUP was "fairly debatable." The circuit court entered final judgment in favor of New Wind and the County. Miller appeals.

III. MILLER'S APPEAL

In Miller's appeal, New Wind and Highland County (collectively, New Wind) argue as a matter of cross-error that the circuit court erred in denying New Wind's plea in bar. According to New Wind, Miller's action is barred because she failed to name the Board as a party to the action within 30 days after the Board's decision as required by Code § 15.2-2285(F). New Wind asserts that we held in Friends of Clark Mountain Found., Inc. v. Board of Supervisors, 242 Va. 16, 406 S.E.2d 19 (1991), that a local governing body is a required party to an action contesting a decision by that governing body. New Wind further contends that "Highland County, Virginia" is not the legal equivalent of the "Board of Supervisors of Highland County," because "Highland County" is a "locality," while the Board is a "governing body."

In response, Miller argues that "Highland County, Virginia" is a "locality" as defined by Code § 15.2-102, and that Code § 15.2-1404 subjects a "locality" to being sued in its own name regarding all matters connected with its duties. Miller further asserts that Code § 15.2-2285(F) does not mandate that a local governing body be named in an action challenging one of its decisions, but only requires that such an action be filed within 30 days of the local governing body's decision. Relying on our decision in Board of Supervisors v. Board of Zoning Appeals, 268 Va. 441, 604 S.E.2d 7 (2004), Miller contends that a person aggrieved by a local governing body's decision may, pursuant to Code § 15.2-1404, contest that decision by naming the "locality" as the defendant. Finally, Miller also argues that if the Board is a necessary party, this Court may join the Board as a party to the action or, if the Board is a required party, the name of Highland County is a misnomer and may be amended to name the Board. We disagree with Miller's arguments.

We resolve these issues by considering the provisions of several statutes, in addition to some of our prior decisions. In interpreting the various statutory provisions, we are presented with pure questions of law that we consider de novo on appeal. Budd v. Punyanitya, 273 Va. 583, 591, 643 S.E.2d 180, 184 (2007); Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006); Horner v. Dep't of Mental Health, 268 Va. 187, 192, 597 S.E.2d 202, 204 (2004); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).

Our central focus is to ascertain and give effect to the intention of the General Assembly. Boynton, 271 Va. at 227, 623 S.E.2d at 925; Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003); Halifax Corp. v. First Union National Bank, 262 Va. 91, 99, 546 S.E.2d 696, 702 (2001). We determine that legislative intent from the words used in the statute. Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129 (2005); Horner, 268 Va. at 192, 597 S.E.2d at 204; Woods v. Mendez, 265 Va. 68, 74, 574 S.E.2d 263, 266 (2003). We must assume that the General Assembly chose, with deliberation and care, the words it employed in the statute. Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005); Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003); Halifax Corp., 262 Va. at 100, 546 S.E.2d at 702. Additionally, when construing statutes that impact the same subject, we harmonize their provisions whenever possible. Peerless Ins. Co. v. County of Fairfax, 274 Va. 236, 244, 645 S.E.2d 478, 483 (2007); Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 439-40, 621 S.E.2d 78, 87 (2005); Capelle v. Orange County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005).

We conclude that, as employed in the statutes...