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LUCY, et al v. COUNTY OF ALBEMARLE


LUCY, et al

v.

COUNTY OF ALBEMARLE


June 11, 1999

Record No. 980770

William H. Lucy, et al.

v.

County of Albemarle


Record No. 980771

City of Charlottesville

v.

County of Albemarle

FROM THE circuit court of the City of Charlottesville

John E. Clarkson, Rodham T. Delk, Jr., and Donald A.
McGlothlin, Jr., Judges

Present: All the Justices

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


In these consolidated appeals, we consider whether a
citizen-initiated petition for reversion of an independent city
to town status under Code Sect. 15.2-4102 (formerly Code
Sect. 15.1-965.10(B)) was properly filed in the circuit
court prior to the notice specified in Code
Sect. 15.2-2907(A) (formerly Code Sect. 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 Sect. 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
Sect. 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
Sect. 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 Sect. 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 Sect. 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
Sect. 15.2-2907, the General Assembly also enacted the
statutory scheme for instituting such actions. Under that
statutory scheme, now found at Code Sect. 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
Sect. 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 (Sect. 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 Sect. 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 (Sect. 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 Sect. 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
Sect. 15.2-4101, and the court shall forthwith
refer the petition to the Commission on Local Government
for review pursuant to Chapter 29 (Sect. 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
Sect. 15.2-4101 requires the city to comply with the notice
provisions of Code Sect. 15.2-2907(A). This requirement is
harmonious with the prohibition contained in Code
Sect. 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
Sect. 15.2-4101 and the filing of a citizen-initiated
petition for such reversion under Code Sect. 15.2-4102
arises in the final sentence of the latter statute, which
provides that "[t]he 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
(Sect. 15.2-2900 et seq.)
." (Emphasis added.) It is
this manifest conflict between Code Sect. 15.2-4102,
requiring a citizen-initiated petition for reversion of a city to
town status to be filed first in circuit court followed by a
referral by the court to the Commission on Local Government, and
Code Sect. 15.2-2907(A), requiring notice of an intended
reversion of a city to town status and a hearing and review by
the Commission on Local Government prior to the filing of any
court action, that is the focal point of these appeals. Within
this statutory scheme, the following factual and procedural
events occurred.

On November 26, 1996, William H. Lucy and four other
representative petitioners (the petitioners) pursuant to Code
Sect. 15.2-4102 filed a petition in the Circuit Court of the
City of Charlottesville with signatures purported to represent at
least fifteen percent of the registered voters of the City of
Charlottesville. The petition stated that "for the reasons
that will appear in the evidence which will be offered at
subsequent hearings . . . it is desirable that the City
of Charlottesville make the transition to town status."
Copies of the petition were served on the city attorney and mayor
of the City of Charlottesville and the county attorney and
chairman of the board of supervisors of Albemarle County, the
adjoining county. The petitioners concede that no written notice
of their intention to seek reversion to town status had been
given to the Commission on Local Government or any affected local
government prior to the filing of the petition in the circuit
court.

On December 13, 1996, the City of Charlottesville (the City)
filed an answer to the petition. The City requested that it be
made a party to the suit and that "the Special Court,
following its appointment, enter [an order] . . . referring this
proceeding, following the Special Court’s disposition of all
pleas, demurrers, or other preliminary motions as may be filed,
to the Commission on Local Government for review pursuant to
[Code Sect. 15.2-2900 et seq.]." On December 16,
1996, we appointed a panel of three judges as authorized by Code
Sect. 15.2-3000 to consider the petition as a special court.

On December 18, 1996, Albemarle County (the County) filed an
answer to the petition. The County challenged the adequacy of the
petition asserting doubt whether the petitioners represented
fifteen percent of the registered voters of the City.
Accordingly, the County asserted that "referral to the
Commission on Local Government prior to determining the
jurisdictional status of the petitioners would be inappropriate
because of the costly and time-consuming nature of the
proceedings before the Commission on Local Government." The
County did not assert in its answer that the petition had been
improperly filed due to lack of prior written notice to the
Commission on Local Government and the affected local
governments. On June 3, 1997, the court entered an order
appointing a special commissioner charged with the responsibility
to determine the validity and sufficiency of the signatures to
the petition.

On June 6, 1997, the County filed a motion to dismiss the
petition. It was in this motion that the County first asserted
that the notice provision of Code Sect. 15.2-2907(A)
precluded the petitioners from filing the petition prior to
giving notice to the Commission on Local Government and the
affected local governments described in that statute. The County
alleged that "the notice provisions are jurisdictional
and/or mandatory condition precedent to filing this action."

Following a hearing on the County’s motion to dismiss,
the court indicated that it would sustain the motion. The
petitioners and the City both filed motions to reconsider. The
motions for reconsideration asserted that the notice requirement
of Code Sect. 15.2-2907(A) was not jurisdictional and was
not implicated until the court referred the matter to the
Commission on Local Government pursuant to Code
Sect. 15.2-4102. The petitioners also sought leave to amend
their petition to include an allegation of actual notice to the
Commission on Local Government and the affected local
governments.

In an opinion letter subsequently adopted by reference in the
final order, the court opined that "the specific and
affirmative notice requirements in the comprehensive statute,
[Code Sect. 15.2-2907(A)], which also specifically apply to
reversion suits, are not overruled by the silence as to notice in
the limited statute for citizen-initiated reversions, [Code
Sect. 15.2-4102]. In the present case, prior notice to the
Commission [on Local Government] was required and not given by
the citizen petitioners."

In a final order dated January 20, 1998, the court sustained
the County’s motion to dismiss and denied the motions to
reconsider. In that order, the court found that Code
Sect. 15.2-2907(A) required the petitioners to give prior
notice to the Commission on Local Government and the affected
local governments; that they had failed to give such notice; and,
that this failure was a jurisdictional defect which required
dismissal of the petition. The court expressly stated that it had
not made any determination of "the eligibility of the City
of Charlottesville for town status" in the future. We
awarded appeals to the petitioners and the City.

Because we find that the dispositive issue of these appeals is
whether Code Sect. 15.2-2907(A) requires the petitioners to
give notice to the Commission on Local Government and the
affected local governments prior to filing their petition under
Code Sect. 15.2-4102, we will confine our discussion of the
respective positions of the parties to that issue.

The petitioners and the City assert that Code
Sect. 15.2-4102 expressly permits a citizen-initiated
petition for reversion from city status to town status to be
filed in the circuit court prior to notice being given to the
Commission on Local Government and affected localities. They
further assert that the express distinction between
city-initiated petitions and citizen-initiated petitions
overrides the broad general language of Code
Sect. 15.2-2907(A). While recognizing the facial conflict
between these two statutes, they contend that the General
Assembly intended for procedural challenges to the validity of a
citizen-initiated petition to be resolved by a court prior to a
referral to the Commission on Local Government. Thus, they
further contend that this conflict is reconciled by a statutory
construction implicating the notice provisions of Code
Sect. 15.2-2907(A) only when a court refers a valid
citizen-initiated petition to the Commission on Local Government
pursuant to Code Sect. 15.2-4102.

The County contends that this construction of Code
Sect. 15.2-4102 improperly treats it as "an isolated
fragment of a law setting out a specific procedure applicable
only to citizen-initiated reversions." Rather, the County
contends that Code Sect. 15.2-2907(A) is a comprehensive
general statute touching upon the same subject matter as Code
Sect. 15.2-4102 and that the two must be construed in
pari materia
. When the two code sections are so construed,
the County asserts that, absent specific language in Code
Sect. 15.2-4102 regarding the pre-filing notice requirements
of Code Sect. 15.2-2907(A), there is a presumption "the
legislature did not intend to innovate on, unsettle, disregard,
alter or violate a general statute or system of statutory
provisions." Prillaman v. Commonwealth, 199 Va. 401,
405-06, 100 S.E.2d 4, 7 (1957). While acknowledging that there is
an apparent conflict between the two statutes concerning the time
for filing a citizen-initiated petition in the circuit court, the
County contends that the notice requirements of Code 15.2-2907(A)
are clear and mandatory. Thus, the County concludes that the
requirement of notice under Code Sect. 15.2-2907(A) prevails
and resolves any conflict with Code Sect. 15.2-4102.

We agree with the County that the statutes in question are to
be considered in pari materia. As we said in Prillaman
"[t]he general rule is that statutes may be considered as
in pari materia when they relate to the same person or
thing, the same class of persons or things or to the same subject
or to closely connected subjects or objects. Statutes which have
the same general or common purpose or are parts of the same
general plan are also ordinarily considered as in pari materia."
Prillaman, 199 Va. at 405, 100 S.E.2d at 7.

However, the mere fact that statutes relate to the same
subject or are part of the same general plan does not mean that
they cannot also be in conflict. Indeed, the reason for
considering statutes in pari materia is that this permits
"any apparent inconsistencies [to] be ironed out whenever
that is possible." Commonwealth v. Sanderson, 170 Va.
33, 38, 195 S.E. 516, 518 (1938). Thus, we have recognized that
the requirement that we consider statutes as in pari materia
is only one rule of statutory construction among many:

In the construction of statutes, the courts have but
one object, to which all rules of construction are
subservient, and that is to ascertain the will of the
legislature, the true intent and meaning of the statute,
which are to be gathered by giving to all the words used
their plain meaning, and construing all statutes in
pari materia
in such manner as to reconcile, if
possible, any discordant feature which may exist, and
make the body of the laws harmonious and just in their
operation.

Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61
(1914); see also Waller v. Commonwealth, 192 Va.
83, 89, 63 S.E.2d 713, 716 (1951); The Covington Virginian,
Inc. v. Woods
, 182 Va. 538, 548-49, 29 S.E.2d 406, 411
(1944). Guided by this rule of statutory construction, we turn
now to the specific statutes in question.

As noted above, Code Sect. 15.2-2900 et seq.
clearly give the Commission on Local Government the authority and
responsibility to review all matters touching upon the status of
local governments to ensure that all localities are maintained as
viable communities in which their citizens can live. It is
equally clear that the purpose of Code Sect. 15.2-2907(A) is
to invoke in a timely manner the Commission on Local
Government’s fact-finding process on any of the matters
within its purview to ensure that all affected local governments
have notice of and an opportunity to be heard in that process.

In this manner, the overall procedural scheme embodied in Code
Sect. 15.2-2907 promotes settlement of disputes between
localities without resort to court action by the provision of
subsection A that permits the Commission on Local Government to
"actively seek to negotiate a settlement of the proposed
action," and with the agreement of the parties to
"appoint an independent mediator" to facilitate such
settlement. Thus, it is manifest that the General Assembly’s
primary intent was to permit, where possible, a settlement of
disputes between localities prior to any mandated resolution by a
court. To that end, Code Sect. 15.2-2907(A) unequivocally
prohibits the filing of any court action until the Commission on
Local Government has been notified and completed its review.[2]

We think, however, it is significant that there is no
authority anywhere in the pertinent statutory scheme for the
Commission on Local Government to decline to review an action
that may appear to lack merit. Specific to the issue in these
appeals, there is no provision for the Commission on Local
Government to suspend its proceedings in order to permit a court
to consider legal challenges to a citizen-initiated petition
under Code Sect. 15.2-4102, as the County suggests could be
done. Rather, Code Sect. 15.2-2907(A) provides that
"[u]pon receipt of the notice the Commission shall hold
hearings, make investigations, analyze local needs and make
findings of facts and recommendations."

As the County itself acknowledged in its answer to the
petition in this case, proceedings before the Commission on Local
Government are "costly and time-consuming." It is
reasonable, therefore, that the General Assembly would not intend
for private citizens to have the unfettered power to bring
frivolous or procedurally deficient matters before the Commission
on Local Government and thereby subject the Commission on Local
Government and affected local governments to the unnecessary
expenditure of taxpayer resources.

In this context, Code Sect. 15.2-4102 may be reasonably
reconciled with Code Sect. 15.2-2907(A) when the former is
construed as a "gatekeeper" statute. Under this
construction, the sole purpose for treating citizen-initiated
petitions for reversion of a city to town status differently from
such city-initiated petitions is to permit the city and the
county directly involved to raise procedural challenges to the
efficacy of citizen-initiated petitions in the court where they
are filed, thus avoiding unnecessary involvement of the
Commission on Local Government and other local governments in
those cases where the petitions would fail without regard to
their merits. Once those challenges are resolved, the statute
expressly mandates that the court refer the petition to the
Commission on Local Government without taking further action on
the merits of the petition until the provisions of Code
Sect. 15.2-2900 et seq. have been satisfied.

This construction of Code Sect. 15.2-4102 as a gatekeeper
statute is bolstered by our further conclusion that, contrary to
the concern expressed by the court below, Code
Sect. 15.2-4102 does contain a comprehensive notice scheme.
That scheme readily may be reconciled with the intent of Code
Sect. 15.2-2907(A) that affected local governments have a
full and fair opportunity to participate in the Commission on
Local Government’s proceedings prior to a trial on the
merits of a citizen-initiated petition for reversion to town
status. Code Sect. 15.2-4102 mandates that a copy of the
petition be served on the attorney and mayor of the city and the
attorney and chairman of the board of supervisors of its
adjoining county or counties. In addition, this statute mandates
publication of a copy of the petition in a newspaper having
general circulation in those localities. Thereafter, the statute
mandates that the court forthwith refer the petition to the
Commission on Local Government which in turn is subject to the
mandate of Code Sect. 15.2-2907(B) to publish a notice of
its hearing in a newspaper of general circulation in the affected
counties and cities. These notice requirements ensure that the
affected governments and other interested parties will have an
adequate opportunity to be heard before the Commission on Local
Government issues its final report and before any hearing on the
merits is conducted by the court. In this context, Code
Sect. 15.2-4102 and Code Sect. 15.2-2907(A) are
reconciled to the greatest extent possible and, moreover, are
just in their operation.

For these reasons, we hold that the trial court erred. Thus,
we will reverse the judgment of the court below and remand the
case for further proceedings consistent with the views expressed
in this opinion.

Reversed and remanded.

 

FOOTNOTES:

[1]
Subsequent to the filing of the petition for reversion at issue
in these appeals, Title 15.1 was superseded by Title 15.2, with
the relevant statutory provisions now appearing in Code
Sects. 15.2-2900 et seq. and 15.2-4100 et
seq. Because there is no material change between the
former and current versions of the statutes we address, we will
refer herein to the current statutes.

[2] We note that when the General
Assembly in 1988 amended the former version of Code
Sect. 15.2-2907(A) to include "person" within the
statute’s mandate for pre-filing notice to the Commission on
Local Government and affected localities, it created a patent
ambiguity in the statute. Obviously, a "person" cannot
be "the locality proposing such action" contained in
the emphasized phrase of the statute previously noted in this
opinion. This ambiguity, while not controlling in our analysis,
further illustrates the conflict between Code
Sect. 15.2-2907(A) and Code Sect. 15.2-4102 created in
1988 that necessitates statutory construction to reconcile these
statutes.

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