Virginia Historic Landmarks Commission v. Board of Sup'rs of Louisa County

• Decision Date: 24 November 1976
• Docket Number: No. 75--1285,75--1285
• Citation: 230 S.E.2d 449,217 Va. 468
• Parties: VIRGINIA HISTORIC LANDMARKS COMMISSION and Historic Green Springs, Inc. v. The BOARD OF SUPERVISORS OF LOUISA COUNTY et al. Record
• Court: Virginia Supreme Court

Page 449

230 S.E.2d 449

217 Va. 468

VIRGINIA HISTORIC LANDMARKS COMMISSION and Historic Green Springs, Inc. v. The BOARD OF SUPERVISORS OF LOUISA COUNTY et al.

Record No. 75--1285.

Supreme Court of Virginia.

Nov. 24, 1976.

J. Thomas Steger, Asst. Atty. Gen., Emanuel Emroch, Richmond (Andrew P. Miller, Atty. Gen., on briefs), for plaintiffs in error.

William A. Perkins, Jr., Charlottesville, W. W. Whitlock, Mineral (Elizabeth H. Woodard, Stephen C. Harris, Commonwealth's Atty., Louisa, S. Page Higginbotham, Higginbotham & Higginbotham, Orange, McGuire, Woods & Battle, Richmond, on briefs), for defendants in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

The Louisa County Board of Supervisors and certain landowners filed their petition in the court below seeking a judicial review of a resolution adopted by the Virginia Historic Landmarks Commission, identifying the Green Springs Historic District as a landmark for the Virginia Landmarks Register. ¹ Their petition alleged that the lower court had jurisdiction pursuant to Virginia Code § 9--6.13 and its 'general jurisdiction on matters affecting real estate within the jurisdiction of this Court'. The Landmarks Commission made a motion to dismiss the petition on the ground that the Commission is not an agency subject to the General Administrative Agencies Act (Code §§ 9--6.1, Et seq.). ² The trial court overruled the motion to dismiss, heard the case, concluded that appellees were entitled to relief and remanded the cause to the Commission with directions.

This controversy springs from the attempted location by the Commonwealth of Virginia of a prison-diagnostic center in an area of Louisa County commonly known as Green Springs. Numerous property owners and others voiced strong opposition to the proposed location. The then Governor of Virginia, reacting to this opposition, announced on October 10, 1972, that the prison facility would be moved if the Green Springs area in which it was to be located could be preserved. Responding to the Governor's request, the staff of the Commission made its investigation and study incident to developing plans 'for preserving the significant aspects of the Green Springs area'. Numerous exchanges occurred between representatives of the Commission and interested parties, including the Board of Supervisors. Representatives of the Board, as well as other parties opposed to the proposed designation of the Green Springs Historic District, appeared at a meeting of the Commission held February 20, 1973. It was at this meeting that the Commission took the action which precipitated this case. Minutes of the meeting disclose the following resolution:

'After discussion, upon motion made . . . seconded . . . and adopted . . . the Green Springs Historic District, Louisa County, was identified as a landmark for the Virginia Landmarks Register and the Governor's Office was to be notified.'

The district contains approximately 14,000 acres and is the largest historical district, in terms of acres, in the state. The Commission's staff described Green Springs as 'a comparatively unchanged example of an agricultural region which prospered during the nineteenth century.' Prior to February 20, 1973, the Commission had designated four houses located in the area as individual historic landmarks. It suffices to say that the identification of the 14,000 acre area as a historic district provoked both favorable and unfavorable comment. Controversy developed over the propriety of designating a land area as a historic district and over the effect on land values of the action taken by the Commission. Some property owners demanded that their properties be removed from the district.

A further and more detailed review of the voluminous testimony and exhibits would be of questionable value in the resolution of the present appeal. In brief, the appellees claim, Inter alia, that the action of the Commission places a cloud against and jeopardizes the free marketability of their property, and takes certain property rights from them without compensation and without due process. They say that the Commission acted not only arbitrarily and capriciously but also acted without having a public hearing or giving public notice. The Commission responds that it has acted in strict accordance with the provisions of Title 10, Chapter 11, Code of Virginia (Repl.Vol.1973); that its sole act has been to identify the Green Springs area as a historic district; that this amounted only to a recognition of the qualities of Green Springs; that it imposed no restrictions on the property owners; and that it did nothing to affect the value of their property. The Commission argues that any preservation of the area is a matter left to the county government by statute.

The trial judge found that 'while the establishment of a historic district affects property rights, it is not apparent that an identification of a historical district does anything more than encourage the County or City to adopt such rules and regulations as the (Landmarks) Commission may develop and recommend for the preservation of historical, architectural and archeological values'. However, being of opinion that such identification set in motion a pattern of restriction and control of the future use of the property involved, he said 'the next step is that of governmental action by the Commission and the local governing body in establishing rules and regulations for the preservation of its historical, architectural and archeological values, without reference to the rights of the property owner'. The trial judge concluded that a property owner was entitled to be heard at some stage in the process and to have an appeal from an adverse ruling, and that since these remedies are not expressly provided for anywhere in the Code sections creating and outlining the duties of the Commission, Code § 10--138(h), discussed Infra, was defective. The court then entered an order remanding the cause to the Commission 'for modification of the geographic area designated as Green Springs Historic District by removing therefrom all properties the owners of which have not consented to their inclusion therein and for such further action as may be appropriate and not inconsistent with this order and the written opinion heretofore handed down . . ..'

The basic question here involves a construction of the statutory powers conferred upon the Commission, and whether it has the authority to enact rules having the effect of law or to adjudicate contested cases. Without such authority it is not an agency within the purview of the General Administrative Agencies Act. ³

The Commission was created in the executive department of the state government by Acts of Assembly, 1966, ch. 632, which is codified in Title 10, Chapter 11, Code of Virginia (Repl.Vol.1973). Code § 10--138 vests the Commission with certain powers and duties which we summarize as follows:

(a) '(D)esignate as an historic landmark' buildings and sites which constitute significant historical, architectural and archeological locations.

(b) Prepare a register of those buildings and sites which meet the requirements prescribed for the historic landmark designation.

(c) 'With the consent of the landowners, certify and mark, with appropriately designed markers, buildings and sites which it has registered.'

(d) 'Establish standards for the care and management of certified landmarks'; withdraw certification if prescribed standards are not maintained.

(g) 'Establish historic districts for registered landmarks and designate the area thereof by appropriate markers provided the county or city in which the district or registered landmark is located fails or refuses to take such action as is necessary to establish and maintain such districts.'

(h) 'Identify historical districts for registered landmarks and aid and encourage the county or city in which the district or landmark is located to adopt such rules and regulations as the Commission may develop and recommend for the preservation of historical, architectural, or archeological values.'

Subparagraphs (e), (f), (i), (j) and (k) of Code § 10--138 provide the Commission with general powers, including the sale and purchase of registered landmark sites. The Commission is not vested with the power of eminent domain. ⁴

At the time the Commission, pursuant to Code § 10--138(h), identified the Green Springs Historic District, neither notice nor a public hearing was a prerequisite to its performance of any duty it was authorized by statute to perform. Subsequently, the 1975 General Assembly (Acts, 1975, ch. 282) enacted Code § 10--138.2 to provide that in any county or city in which the Commission determines to identify or establish historic districts, it shall notify the governing body of such county or city of its proposed action prior to officially making same. The governing body, by resolution, may compel the Commission to hold a public hearing and to publish notice thereof 'for the purpose of supplying additional information to the Commission'. The statute defines a historic district as 'a geographically definable area, which contains a significant concentration of historic buildings, structures or sites, sharing a common historical, architectural or cultural heritage'. ⁵ The purpose of the chapter establishing the Commission is set forth in Code § 10--145, where it is said:

'Construction of chapter.--This chapter being designed for the public welfare and the perpetuation of those structures and areas which have a close and immediate relationship to the values upon which this State and the nation were founded, and which serve as a means of illustrating to present and future generations the inherent worth of such values and the unchangeable truths thereby demonstrated, shall be broadly construed in order to accomplish the purposes herein set forth. (1966, c. 632.)'

The...