Newberry Station Homeowners Ass'n v. Board of Supervisors

PRESENT: All the Justices

NEWBERRY STATION HOMEOWNERS
ASSOCIATION, INC., ET AL.
OPINION BY
v. Record No. 121209 JUSTICE WILLIAM C. MIMS
April 18, 2013
BOARD OF SUPERVISORS OF
FAIRFAX COUNTY, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

In this appeal, we consider whether Code § 15.2-852(A)

prohibited two members of a board of supervisors from

participating in and voting on an application for a special

exception. We also consider whether the circuit court erred in

finding sufficient evidence to make approval of the application

fairly debatable.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

In 2010, Iskalo CBR, LLC, (“Iskalo”) filed an application

(“the Application”) for a special exception to build a

Washington Metropolitan Area Transit Authority (“WMATA”) bus

maintenance facility on a parcel of land in Fairfax County.

The parcel comprises 5.32 acres which lie in the R-1 zoning

district and 12.05 acres which lie in the I-6 zoning district.

After a public hearing, the planning commission approved the

facility as being substantially in accord with the

comprehensive plan pursuant to Code § 15.2-2232(A) and
recommended approval of the Application by the board of

supervisors (“the Board”). 1

Newberry Station is a residential community situated a

mile from the proposed facility and between 140 feet and a

quarter-mile from the road over which the bus traffic would

travel. If constructed, the facility would significantly

increase vehicular traffic over the road, attributable not only

to the buses but also to commuting employees traversing the

road during both daylight and overnight hours. The Newberry

Station Homeowners Association, Inc. (“the HOA”) submitted

official comments to the Board recommending that it overturn

the planning commission’s Code § 15.2-2232(A) approval and

reject the Application.

At a February 2011 public hearing, the Board’s chairman

and Supervisor Cook disclosed that they had received campaign

contributions from attorneys representing Iskalo. In addition,

Supervisor Hudgins disclosed that she was a principal director

of WMATA and Supervisor McKay disclosed that he was an

alternate director of WMATA. At its March 2011 meeting, the

Board approved the Application by a vote of 6 to 3. The

Board’s chairman abstained and the three supervisors who had

made disclosures voted to approve the Application.

1
The Board reserves the authority to grant special
exceptions. Fairfax County Zoning Ordinance (“FCZO”) § 9-001;
see also Code § 15.2-2286(A)(3).

2
 The HOA, Brandon Farlander, and Michael Miller

(collectively, “Newberry Station”) thereafter filed a complaint

seeking a declaratory judgment that the Board’s approval of the

Application was void and an injunction barring construction of

the facility. 2 They argued that Code § 15.2-852(A) required

Supervisors Cook, Hudgins, and McKay to recuse themselves from

the Board’s consideration of the Application and that, had they

recused themselves as required, the Application would have

failed on a 3-3 vote. The complaint also alleged that the

Board’s approval of the Application was not fairly debatable.

The Board filed a demurrer arguing, among other things,

that while Code § 15.2-852(A) required the disclosure made by

the three supervisors, it did not require them to recuse

themselves because they did not have a conflicting business or

financial interest covered by the statute. The Board further

argued that there was sufficient evidence to establish that its

approval of the Application was fairly debatable.

The circuit court sustained the Board’s demurrer only as

to the applicability of Code § 15.2-852(A). Thereafter, the

parties filed cross-motions for summary judgment. In its

motion the Board again argued that the evidence was sufficient

2
The complaint named the Board, WMATA, and Iskalo as
defendants. Iskalo was subsequently dismissed from the case.
The order granting the Board’s motion for summary judgment
dismissed the complaint as to both the Board and WMATA and
therefore is final as to all remaining parties.

3
to establish that its approval of the Application was fairly

debatable. The circuit court agreed. It therefore awarded the

Board summary judgment and dismissed the complaint.

We awarded Newberry Station this appeal.

II. ANALYSIS

A. CONFLICTS OF INTEREST REQUIRING
RECUSAL UNDER CODE § 15.2-852(A)

In its first assignment of error, Newberry Station asserts

that the circuit court erred in sustaining the Board’s demurrer

because Supervisors Hudgins and McKay each had a conflict of

interest and therefore was ineligible under Code § 15.2-852(A)

to participate and vote during the Board’s consideration of the

Application. 3 The circuit court ruled that the supervisors did

not have conflicts within the meaning of the statute. This is

a question of statutory interpretation which we review de novo.

Manchester Oaks Homeowners Ass'n v. Batt, 284 Va. 409, 427, 732

S.E.2d 690, 701 (2012).

3
Newberry Station no longer asserts that the circuit court
erred in sustaining the Board’s demurrer as to Supervisor Cook.
Consequently, Newberry Station’s appeal now challenges only 2
votes of the 3-vote majority which approved the special
exception. Nevertheless, Code § 15.2-852(A) disqualifies
members with conflicts of interest from not only voting but
also from “participat[ing] in any way.”
Newberry Station alleged both that Supervisors Hudgins and
McKay participated extensively in preliminary proceedings and
that their participation tainted the Board’s entire
consideration of the Application. Because this issue was
decided on demurrer, we must accept these allegations as true.
Schilling v. Schilling, 280 Va. 146, 147, 695 S.E.2d 181, 182
(2010).

4
Code § 15.2-852(A) provides in relevant part that:

Each individual member of the board of
supervisors . . . in any proceeding . . .
involving an application for a special
exception . . . shall, prior to any hearing
on the matter or at such hearing, make a
full public disclosure of any business or
financial relationship which such member
has, or has had within the 12-month period
prior to such hearing, (i) with the
applicant in such case, or (ii) with the
title owner, contract purchaser or lessee
of the land that is the subject of the
application . . ., or (iii) if any of the
foregoing is a trustee (other than a
trustee under a corporate mortgage or deed
of trust securing one or more issues of
corporate mortgage bonds), with any trust
beneficiary having an interest in such
land, or (iv) with the agent, attorney or
real estate broker of any of the foregoing.
For the purpose of this subsection,
“business or financial relationship” means
any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member, or any member of the
member’s immediate household, either
directly or by way of a partnership in
which any of them is a partner, employee,
agent or attorney, or through a partner of
any of them, or through a corporation in
which any of them is an officer, director,
employee, agent or attorney or holds 10
percent or more of the outstanding bonds or
shares of stock of a particular class, has,
or has had within the 12-month period prior
to such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified. For the purpose of this
subsection “business or financial
relationship” also means the receipt by the
member, or by any person, firm, corporation
or committee in his behalf from the
applicant in the case or from the title

5
 owner, contract purchaser or lessee of the
subject land . . ., or from any of the
other persons above specified, during the
12-month period prior to the hearing in
such case, of any gift or donation having a
value of more than $100, singularly or in
the aggregate.
If at the time of the hearing in any
such case such member has a business or
financial interest with the applicant in
the case or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified involving the relationship of
employee-employer, agent-principal, or
attorney-client, that member shall, prior
to any hearing on the matter or at such
hearing, make a full public disclosure of
such relationship and shall be ineligible
to vote or participate in any way in such
case or in any hearing thereon.

Newberry Station argues that the statute defines “business

or financial interest” as

any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member . . . either directly or
by way of a partnership in which any of
them is a partner, employee, agent or
attorney, or through a partner of any of
them, or through a corporation in which any
of them is an officer, director, employee,
agent or attorney or holds 10 percent or
more of the outstanding bonds or shares of
stock of a particular class, has, or has
had within the 12-month period prior to
such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
. .

By contrast, the Board argues that this language defines a

“business or financial relationship” and does not pertain to a

6
“business or financial interest.” According to the Board, the

General Assembly used two distinct terms in the statute and

Newberry Station incorrectly uses them interchangeably. The

definition of “business or financial interest,” the Board

continues, is defined in the second paragraph of Code § 15.2-

852(A) as an interest “involving the relationship of employee-

employer, agent-principal, or attorney-client.” Therefore, the

Board concludes, the statute recognizes two distinct classes of

conflict and imposes different obligations on members for each

class: a member who has any qualifying “business or financial

relationship” at the time of the hearing, or who has had such a

relationship at any time within the 12 months preceding the

hearing, must “make a full public disclosure” of the

relationship; however, any member who has “a business or

financial interest” at the time of the hearing not only must

“make a full public disclosure of such relationship” but also

“shall be ineligible to vote or participate in any way in such

case or in any hearing thereon.” Code § 15.2-852(A) (emphasis

added).

Newberry Station responds that the Board’s interpretation

is incorrect. It argues that the phrase “involving the

relationship of employee-employer, agent-principal, or

attorney-client” modifies only the phrase “any of the other

persons above specified.” Thus, according to Newberry Station,

7
the second paragraph merely prohibits a business or financial

interest with (1) the applicant, (2) the title owner, (3) the

contract purchaser, (4) the lessee, or (5) “any of the other

persons above specified involving the relationship of employee-

employer, agent-principal, or attorney-client.” It therefore

does not, Newberry Station concludes, provide any independent

definition of “business or financial interest.”

It is well-settled that “we determine the General

Assembly’s intent from the words contained in the statute.”

Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565

(2004). Accordingly, “[w]hen a statute is unambiguous, we must

apply the plain meaning of that language.” Appalachian Power

Co. v. State Corp. Comm’n, 284 Va. 695, 706, 733 S.E.2d 250,

256 (2012). “[W]hen the language of an enactment is free from

ambiguity, resort to legislative history and extrinsic facts is

not permitted because we take the words as written to determine

their meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d

84, 87 (1985).

However, a statute is ambiguous when its language is

“capable of more senses than one, difficult to comprehend or

distinguish, of doubtful import, of doubtful or uncertain

nature, of doubtful purport, open to various interpretations,

or wanting clearness of definiteness,” particularly where its

words “have either no definite sense or else a double one.”

8
Ayres v. Harleysville Mut. Casualty Co., 172 Va. 383, 393, 2

S.E.2d 303, 307 (1939). We determine that the arguments

advanced by both sides have some element of merit and that the

phrase “business or financial interest” is undefined and

ambiguous in light of its placement following the defined term

“business or financial relationship.” We therefore will

consider the meaning of the statute in light of the canons of

construction and its legislative history.

We begin by evaluating the Board’s argument that the

statute defines “business or financial interest” as one

“involving the relationship of employee-employer, agent-

principal, or attorney-client.” The relevant portion of the

second paragraph of Code § 15.2-852(A) provides that

[i]f at the time of the hearing in any such
case such member has a business or
financial interest with the applicant in
the case or with the title owner, contract
purchaser or lessee of the subject land . .
., or with any of the other persons above
specified involving the relationship of
employee-employer, agent-principal, or
attorney-client, that member shall, prior
to any hearing on the matter or at such
hearing, make a full public disclosure of
such relationship and shall be ineligible
to vote or participate in any way in such
case or in any hearing thereon.

The question essentially is whether the phrase “involving

the relationship of employee-employer, agent-principal, or

attorney-client” modifies the noun “persons” in “any of the

other persons above specified” or the noun “interest” in

9
“business or financial interest.” The Board adopts the first

of these possible constructions. Under this argument, the

phrase “involving the relationship of employee-employer, agent-

principal, or attorney-client” applies to each of the preceding

entities: the applicant, the title owner, the contract

purchaser, the lessee, or any of the other persons listed in

the first paragraph of the subdivision. That construction

contravenes the rule of the last antecedent.

Under that rule, “[r]eferential and qualifying words and

phrases, where no contrary intention appears, refer solely to

the last antecedent. The last antecedent is ‘the last word,

phrase, or clause that can be made an antecedent without

impairing the meaning of the sentence.’” Alger, 267 Va. at

259, 590 S.E.2d at 565-66 (quoting 2A Norman J. Singer,

Sutherland on Statutory Construction § 47.33 (6th rev. ed.

2000)). Applying the rule to the operative sentence here, the

phrase “involving the relationship of employee-employer, agent-

principal, or attorney-client” modifies only the immediately

preceding antecedent: “any of the other persons above

specified.” The phrase does not apply to the applicant, the

title owner, the contract purchaser, or the lessee. 4 It

4
In Alger, we also noted the preferred procedure for
clarifying whether modifying language is intended to modify all
preceding antecedents or only the final one. 267 Va. at 260 &
n.3, 590 S.E.2d at 566 & n.3. The General Assembly is presumed
to be aware of that decision, see Barson v. Commonwealth, 284

10
similarly does not modify “business or financial interest,”

thereby defining that phrase to be distinct from “business or

financial relationship.” 5 We now turn to Newberry Station’s

argument.

We have repeatedly said that, “[w]hen interpreting and

applying a statute, we ‘assume that the General Assembly chose,

Va. 67, 74, 726 S.E.2d 292, 296 (2012), and it has made no
corresponding amendment to Code § 15.2-852(A).
5
Only two words separate the phrase “involving the
relationship of employee-employer, agent-principal, or
attorney-client” from “persons” in “any of the other persons
above specified.” By comparison, 53 words separate it from
“interest” in the phrase “business or financial interest.” Had
the General Assembly intended the phrase “involving the
relationship of employee-employer, agent-principal, or
attorney-client” to modify “interest,” it would have written
the prohibition to apply when a “member has a business or
financial interest involving the relationship of employee-
employer, agent-principal, or attorney-client with the
applicant,” and so forth. It did not.
Similarly, we are not persuaded that the phrase “any of
the other persons above specified” is legislative shorthand
intending simply to bring the entities identified by clauses
(iii) and (iv) of the first paragraph within the reach of the
second paragraph. The second paragraph explicitly recites in
full the entities identified by clauses (i) and (ii) of the
first paragraph. “[I]t is a ‘settled principle of statutory
construction that every part of a statute is presumed to have
some effect and no part will be considered meaningless unless
absolutely necessary.’” Brown v. Commonwealth, 284 Va. 538,
544, 733 S.E.2d 638, 641 (2012). We therefore must conclude
that the General Assembly acted deliberately when it treated
the clause (i) and (ii) entities differently compared to the
clause (iii) and (iv) entities. If it intended only to resort
to legislative shorthand, the General Assembly would have
abbreviated the second paragraph considerably by writing the
prohibition to apply when a “member has a business or financial
interest involving the relationship of employee-employer,
agent-principal, or attorney-client with any entity identified
in clauses (i) through (iv) above.” Again, it did not.

11
with care, the words it used in enacting the statute, and we

are bound by those words.’” Kiser v. A.W. Chesterton Co., 285

Va. 12, 19 n.2, 736 S.E.2d 910, 915 n.2 (2013) (quoting Halifax

Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d

696, 702 (2001)); accord Rives v. Commonwealth, 284 Va. 1, 3,

726 S.E.2d 248, 250 (2012). Therefore, “‘when the General

Assembly has used specific language in one instance, but omits

that language or uses different language when addressing a

similar subject elsewhere in the Code, we must presume that the

difference in the choice of language was intentional.’” Id.

(quoting Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va.

330, 337, 714 S.E.2d 922, 925 (2011)).

Applying these principles to this case could lead to the

conclusion that the General Assembly deliberately chose the

phrase “business or financial relationship” in the first

paragraph of Code § 15.2-852(A) and “business or financial

interest” in the second paragraph intending the two phrases to

have different meanings. However, the legislative history of

this specific statute reveals a contrary purpose.

When the statute originally was enacted and codified as

former Code § 15.1-73.4, and for nearly thirty years

thereafter, the phrase “business or financial interest” was

followed by the phrase “as above defined,” indicating that the

General Assembly intended that phrase to have the meaning set

12
forth in preceding language. 1968 Acts ch. 774; accord 1970

Acts ch. 654; 1988 Acts ch. 879. Yet no definition of

“business or financial interest” was provided there; the only

definition set forth was the one provided for a “business and

financial relationship.” Id. This supports an interpretation

that the legislature at that time intended the terms “business

or financial relationship” and “business or financial interest”

to be synonymous.

However, the General Assembly subsequently struck the

phrase “as above defined” from the statute when it was

recodified as Code § 15.2-852. 1997 Acts ch. 587. The Board

argues this amendment reflects legislative intent that the two

phrases thenceforth would have two distinct meanings. We

disagree.

As an enactment to recodify an existing title of the Code

of Virginia, the underlying legislation was prepared by the

Virginia Code Commission (“the Commission”) at the direction of

the General Assembly, Senate J. Res. 2, 1994 Acts, at 2600, and

it was accompanied by a drafting report. Senate Doc. No. 5,

Virginia Code Commission, Report on the Recodification of Title

15.1 of the Code of Virginia at 173-74 (1997). The drafting

report proposed the elimination of “as above defined” after the

phrase “business or financial interest.” Id. at 174. The

13
drafting note for this amendment also states that the proposal

was not intended to effect a substantive change. Id.

The Commission’s report on the recodification is the

impetus of the underlying legislation at issue here. 6 The

General Assembly expressly instructed the Commission “to study

Title 15.1” and report back a revision of the title. Senate J.

Res. 2, 1994 Acts, at 2600. The General Assembly then enacted

into law the proposals contained in the report with few

amendments, and no amendments at all to the recommended

language of the provision that is now codified as Code § 15.2-

852(A). We therefore accept the report’s drafting note as

persuasive authority that the General Assembly did not intend

to effectuate a substantive change to the definition of

“financial or business interest” with the 1997 recodification.

As previously noted, from the time of its original

enactment in 1968 to the 1997 recodification the operative

language of the second paragraph began, “[i]f at the time of

the hearing . . . a member . . . has a business or financial

6
It has been noted that neither the single voice of one
contemporaneous legislator nor a chorus of voices from a
subsequent session composed of later-elected legislators may
authoritatively state the legislature’s intent in enacting
legislation. Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 117-18 (1980). But the Commission report
is neither of these and, as Chief Justice John Marshall noted,
“‘[w]here the mind labours to discover the design of the
legislature, it seizes every thing from which aid can be
derived.’” Id. at 118 n.13 (quoting United States v. Fisher, 6
U.S. 358, 386 (1805)).

14
interest, as above defined . . . .” Former Code § 15.1-73.4

(emphasis added). However, the phrase “business or financial

interest” was not defined in the preceding language; only the

phrase “business or financial relationship” was defined. We

therefore conclude that the phrase “business or financial

interest” was intended to have the same meaning as “business or

financial relationship.” Separating the meaning of “business

or financial interest” as used in the second paragraph from

“business or financial relationship” as used in the first

paragraph would have effectuated a substantive change. That

expressly was not the intention of the Commission in proposing

the amendment and there is no evidence that the General

Assembly enacted the proposal with a different intent.

Accordingly, “business and financial interest” has the

same meaning as “business and financial relationship.” As

defined in the statute, “business or financial relationship”

means, in relevant part, 7

any relationship (other than any ordinary
customer or depositor relationship with a
retail establishment, public utility or
bank) such member . . . either directly or
by way of a partnership in which any of
them is a partner, employee, agent or
attorney, or through a partner of any of
them, or through a corporation in which any

7
Newberry Station does not contend that Supervisors
Hudgins or McKay received any gift or donation exceeding $100
in value. The definition of “business or financial
relationship” encompassing such gifts or donations therefore is
not relevant here.

15
 of them is an officer, director, employee,
agent or attorney or holds 10 percent or
more of the outstanding bonds or shares of
stock of a particular class, has, or has
had within the 12-month period prior to
such hearing, with the applicant in the
case, or with the title owner, contract
purchaser or lessee of the subject land . .
. .

Code § 15.2-852(A). Although this is the definition Newberry

Station favors, our analysis is not concluded. Rather, we must

determine whether Supervisors Hudgins and McKay had such a

relationship.

Newberry Station argues that such a relationship existed

because (a) WMATA was the contract purchaser of the land

subject to the Application and (b) WMATA is a corporation and

Supervisors Hudgins and McKay were members of its board of

directors. Although it does not dispute that WMATA was the

contract purchaser, the Board responds that WMATA is a

governmental agency, not a private corporation, and therefore

is not a corporation within the meaning of Code § 15.2-852(A).

Having recently addressed a similar issue, we agree with the

Board.

WMATA is a government agency created in corporate form by

interstate compact between Virginia, Maryland, and the District

of Columbia. The Washington Metropolitan Area Transit

Regulation Compact of 1966, as amended by 2009 Acts chs. 771

and 828 (“the Compact”) states:

16
 There is hereby created, as an
instrumentality and agency of each of the
Signatory parties hereto, the Washington
Metropolitan Area Transit Authority which
shall be a body corporate and politic, and
which shall have the powers and duties
granted herein and such additional powers
as may hereafter be conferred upon it
pursuant to law.

(Emphasis added.) The words “body corporate and politic”

create a corporation. See Dunningtons v. President & Dir. N.

W. Turnpike Road, 47 Va. (6 Gratt.) 160, 170 (1849); Chapline

v. Overseers of the Poor, 34 Va. (7 Leigh) 231, 233 (1836).

However, WMATA is also “an instrumentality and agency of” the

Commonwealth. See Short Pump Town Ctr. Cmty. Dev. Auth. v.

Hahn, 262 Va. 733, 742 & n.10, 554 S.E.2d 441, 445 & n.10

(2001) (language creating a “public body corporate and politic”

or creating a “body corporate and politic” and a “political

subdivision” creates a governmental agency).

In Cuccinelli v. Rector & Visitors of the University of

Virginia, 283 Va. 420, 722 S.E.2d 626 (2012), we were called

upon to determine whether the University of Virginia, which

like WMATA is a governmental agency in corporate form, 8 was a

“person” for the purposes of the Virginia Fraud Against

Taxpayers Act, Code § 8.01-216.1 et seq. We noted that a

8
The university is a corporation by operation of statute.
Code § 23-69. Nevertheless, it is also an agency of the
Commonwealth. Rector & Visitors of the Univ. of Va. v. Carter,
267 Va. 242, 245, 591 S.E.2d 76, 78 (2004) (citing James v.
Jane, 221 Va. 43, 51, 282 S.E.2d 864, 868 (1980)).

17
“corporation” was included in the definition of “person”

provided in Code § 8.01-216.2 for that Act. 283 Va. at 426,

722 S.E.2d at 630. However, we also noted that the term

“corporation” appeared alongside the terms “firm, association,

organization, partnership, limited liability company, business

or trust." Id. Applying the canon of noscitur a sociis, 9 we

concluded that the term “‘corporation’ should be understood as

a similarly oriented private sector entity, and not as

encompassing an agency of the Commonwealth.” Id. at 432, 722

S.E.2d at 633.

In applying the canon to Code § 15.2-852(A), the related

words and phrases from which the precise meaning of

“corporation” should be ascertained are “retail establishment,”

“public utility,” “bank,” and “partnership.” These words

accompanying “corporation” in Code § 15.2-852(A) relate to

entities oriented to financial gain just as the words

accompanying “corporation” do in Code § 8.01-216.2. As used in

Code § 15.2-852(A), the words illustrate that in enacting the

9
Under the canon of noscitur a sociis, the precise meaning
intended by the legislature of a word susceptible to multiple
meanings is ascertained “by reference to [its] association with
related words and phrases” in the statute. Cuccinelli, 283 Va.
at 432, 722 S.E.2d at 633 (quoting Andrews v. Ring, 266 Va.
311, 319, 585 S.E.2d 780, 784 (2003)). Where general words and
specific words occur together, “the general words are limited
and qualified by the specific words and will be construed to
embrace only objects similar in nature to those objects
identified by the specific words.” Id. (quoting Andrews, 266
Va. at 319, 585 S.E.2d at 784).

18
statute the General Assembly intended to prevent members of the

Board from acting on public business from which they may

receive a financial benefit, either directly or through a

household member. Because WMATA is a governmental agency

organized in corporate form, it affords no opportunity for

financial benefit to its unpaid directors. 10 It therefore is

not a “corporation” within the meaning of the statute.

Accordingly, the circuit court did not err in sustaining

the Board’s demurrer. We therefore will affirm this portion of

its judgment.

B. SUFFICIENCY OF THE EVIDENCE

In its second assignment of error, Newberry Station

asserts that the circuit court erred by awarding the Board

summary judgment upon a finding that the Board’s approval of

the Application was fairly debatable.

Approval of a special exception is a legislative act.

Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 581,

727 S.E.2d 40, 47 (2012) (citing Fairfax County Board of

Supervisors v. Southland Corp., 224 Va. 514, 522, 297 S.E.2d

718, 722 (1982)). It therefore is entitled to a presumption of

validity. Town of Leesburg v. Giordano, 280 Va. 597, 606, 701

S.E.2d 783, 787 (2010).

10
The Compact expressly provides that “[m]embers of the
Board and alternates shall serve without compensation but may
be reimbursed for necessary expenses incurred as an incident to
the performances of their duties.”

19
 This presumption of validity is a
presumption of reasonableness. Legislative
action is reasonable if the matter at issue
is fairly debatable. An issue is fairly
debatable when the evidence offered in
support of the opposing views would lead
objective and reasonable persons to reach
different conclusions. Under the fairly
debatable standard, the governing body is
not required to go forward with evidence
sufficient to persuade the fact-finder of
reasonableness by a preponderance of the
evidence.
[Rather, w]here presumptive
reasonableness is challenged by probative
evidence of unreasonableness, the challenge
must be met by some evidence of
reasonableness. If evidence of
reasonableness is sufficient to make the
question fairly debatable, the legislative
action must be sustained. If not, the
evidence of unreasonableness defeats the
presumption of reasonableness and the
legislative action cannot be sustained.

Id., 701 S.E.2d at 787-88 (internal citations, quotation marks,

and alterations omitted). Nevertheless, when a legislative act

is undertaken in violation of an existing ordinance, the

board’s “action [i]s arbitrary and capricious, and not fairly

debatable, thereby rendering the [legislative act] void and of

no effect.” Renkey v. County Bd. of Arlington County, 272 Va.

369, 376, 634 S.E.2d 352, 356 (2006).

Newberry Station first argues that the Board’s action was

arbitrary and capricious, and therefore void, under the Renkey

standard because the Application was approved in violation of

FCZO §§ 9-006(6), 9-011, and 9-404(4). However, unlike the

20
ordinance at issue in Renkey, the cited provisions do not

restrict the authority of the Board to act.

In Renkey, we considered a provision in the Arlington

County Zoning Ordinance (“ACZO”). That provision permitted the

board of supervisors to rezone land into a “C-R” class

designation. The ordinance provided that “to be eligible for

the classification, a site shall be located within an area

designated ‘medium density mixed use’ and zoned ‘C-3’.” 272

Va. at 373, 634 S.E.2d at 354 (quoting ACZO § 27A). A

landowner applied to have its parcel rezoned into the “C-R”

class designation and the board of supervisors approved the

application. However, only a portion of the subject parcel was

previously zoned in the “C-3” class designation. Id. at 371,

634 S.E.2d at 353.

Renkey challenged the board’s approval in an action for

declaratory judgment and injunctive relief, arguing that the

board’s action was invalid because the non-“C-3” portion of the

parcel was ineligible to be rezoned into the “C-R” class

designation under the ordinance. Id. at 371-72, 634 S.E.2d at

354. We agreed with Renkey, concluding that the board lacked

authority under the ordinance to rezone the non-“C-3” portion

of the parcel into the “C-R” class designation. That portion

of the parcel was, by the terms of the ordinance, ineligible to

be so rezoned. Accordingly, the board’s “action was arbitrary

21
and capricious, and not fairly debatable, thereby rendering the

re-zoning void and of no effect.” Id. at 376, 634 S.E.2d at

356.

While ACZO § 27A restricted the authority of the board of

supervisors to rezone the parcel in Renkey, the ordinance

provisions implicated in this case do not restrict the Board’s

general authority to grant special exceptions. Rather, they at

most articulate the standards by which the Board’s

consideration of a special exception application is to be

guided. While a zoning ordinance must set forth standards

under which applications for special exceptions are to be

considered when local governing bodies delegate that

legislative power, the ordinance need not do so when the local

governing body has reserved the power unto itself. Jennings v.

Board of Supervisors, 281 Va. 511, 520, 708 S.E.2d 841, 846

(2011) (comparing Bollinger v. Board of Supervisors, 217 Va.

185, 187, 227 S.E.2d 682, 683 (1976) with Ames v. Town of

Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990)).

Even when the local governing body delegates the power to

approve or deny a special exception, whereupon standards must

be articulated in the zoning ordinance, id., the judicial

inquiry is limited to the question of whether the “officials,

agencies, and boards exercising delegated legislative powers .

. . ha[ve] acted in accordance with the policies and standards

22
specified in the legislative delegation of power.” Ames, 239

Va. at 349, 389 S.E.2d at 705. That review is subject to the

presumption of validity recited above. Id. at 347-48, 389

S.E.2d at 704; accord Town of Leesburg, 280 Va. at 606, 701

S.E.2d at 787-88. Accordingly, while a local governing body

acts arbitrarily and capriciously when it acts outside the

scope of the authority conferred by the zoning ordinance, and

the resulting action is void, Renkey, 272 Va. at 376, 634

S.E.2d at 356, we apply the presumption of validity when we

review whether the local governing body adequately considered

the standards set forth in the zoning ordinance when it

approved or denied a special exception application.

Newberry Station also argues that the Board’s approval of

the Application is not entitled to a presumption of validity

because it is not fairly debatable. For Newberry Station to

prevail on this argument, the record must establish that it met

its burden to adduce evidence of unreasonableness sufficient to

rebut the presumption of reasonableness and that the Board

failed to meet Newberry Station’s evidence with some evidence

of reasonableness. Town of Leesburg, 280 Va. at 606, 701

S.E.2d at 788.

Newberry Station specifically argues that the Board’s

approval of the Application was unreasonable because the Board

relied on a staff report that evaluated the Application without

23
considering standards applicable under the ordinance. Newberry

Station’s concerns are particularly directed to three

standards, those set forth for open space, noise, and hazardous

and toxic substances. We will consider each argument in turn.

Newberry Station first challenges the Board’s approval on

the basis of open space requirements. FCZO § 9-006 requires

the Board to consider certain general standards for all special

exception applications. Among these is whether “[o]pen space

[is] provided in an amount equivalent to that specified for the

zoning district in which the proposed use is located.” FCZO §

9-006(6). FCZO § 5-608, applicable to the portion of the

parcel lying in the I-6 zoning district, requires 10% of the

gross area to be landscaped open space.

Newberry Station contends the Board failed to consider

this standard because the staff report did not assess the

amount of open space reserved on the portion of the parcel

lying in the I-6 zoning district. The Board responds that the

report contains sufficient evidence that the open space

requirement would be met. We agree with the Board.

The report includes a plat of the portion of the parcel in

the I-6 zoning district. Newberry Station concedes that the

portion of the parcel in the I-6 district has an area of 12.05

acres. The Court may take judicial notice that an acre

consists of 43,560 square feet. See Shackleford v.

24
Commonwealth, 262 Va. 196, 210-11, 547 S.E.2d 899, 907 (2001)

(holding “the circuit court did not err in taking judicial

notice of the conversion ratio” between standard units of

measurement). Therefore, the portion of the parcel in the I-6

district is 524,898 square feet.

Measuring the entire developed area of the parcel lying

within the I-6 zoning district, including the facility, its

parking lots, and other structures, as shown on that plat and

according to its scale of measure, the area is less than

470,000 square feet, leaving more than 54,898 square feet

undeveloped. This exceeds the 10% open space requirement by

more than 2400 square feet.

Newberry Station next challenges the Board’s approval on

the basis of noise limits. FCZO § 9-404(4) requires that

“[a]ll [transportation] facilities shall be so located and so

designed that the operation thereof will not seriously affect

adjacent residential areas, particularly with respect to noise

levels.”

Newberry Station contends the noise study used by the

Board in its consideration predicted the noise levels would be

55.3 decibels if the facility were approved. Under Fairfax

County Code § 108-4-4(a), Newberry Station continues, noise

levels in residential areas from stationary sources may not

25
exceed 55 decibels. The Board responds that Newberry Station

has relied on an inapplicable section of the noise ordinance.

The noise study evaluated noise levels at Hunter Estates,

a residential community adjoining the parcel subject to the

Application. By its own admission, Newberry Station is farther

away from the proposed facility than Hunter Estates.

Consequently, the study is not probative of the noise levels

which may affect Newberry Station. While Newberry Station also

argues that the buses traveling to and from the facility would

generate excessive noise, and that Newberry Station is closer

to the road than Hunter Estates, the limits set by the noise

ordinance for vehicular traffic range from 76 to 90 decibels,

depending on the size of the vehicle and the applicable speed

limit. Fairfax County Code § 108-4-5(a). Newberry Station has

adduced no evidence that the noise from bus traffic would

exceed these levels. 11

More importantly, FCZO § 9-404(4) merely requires the

Board to consider the effect of noise in residential areas. It

does not incorporate the noise ordinance and the noise

ordinance does not provide for its enforcement through the

11
On brief, Newberry Station avers that it would have
provided additional evidence in the form of expert testimony.
However, no assignment of error asserts that the circuit court
erred in awarding summary judgment because material facts were
in dispute or that the court improperly excluded admissible
evidence. The averment therefore has no relevance to this
appeal. See Rule 5:17(c)(1)(i); Rule 5:27(d).

26
zoning ordinance. To the contrary, the noise ordinance

expressly provides for its enforcement as a misdemeanor

punishable by not more than 30 days’ imprisonment or a fine of

not more than $1000. Fairfax County Code § 108-1-3.

Newberry Station finally challenges the Board’s approval

on the basis of hazardous and toxic substances. FCZO § 9-

011(7)(H) requires all special exception applications to

include “[a] listing, if known, of all hazardous or toxic

substances as set forth in Title 40, Code of Federal

Regulations Parts 116.4, 302.4 and 355 . . . to be generated,

utilized, stored, treated, and/or disposed of on site and the

size and contents of any existing or proposed storage tanks or

containers.”

Newberry Station contends the application included no such

listing of substances. Rather, it continues, the Application

merely included plats displaying storage tanks for certain

substances and an additional “hazmat container” with no

indication of what it would contain. Newberry Station also

contends that WMATA uses ethylene glycol, a substance listed in

40 C.F.R. § 302.4, at all its facilities and that ethylene

glycol is not identified in the Application. The Board

responds that the designation of the various containers on the

plats is sufficient because hazardous and toxic substances are

27
regulated during the site-plan review process, not the special

exception approval process.

Unlike FCZO §§ 9-006(6) and 9-404(4), FCZO § 9-011 does

not set forth standards for the Board’s consideration of a

special exception application. Rather, by its own terms FCZO §

9-011 governs the information required to be submitted by the

applicant. The section is captioned “Submission Requirements”

and it begins “[a]ll applications for special exception uses

shall be accompanied by the following items . . . .” FCZO § 9-

011.

While it might be possible in a hypothetical case that an

applicant’s failure to submit an application that fulfills a

requirement imposed by the zoning ordinance would prevent a

local governing body or delegated authority from considering

one or more of the standards set forth in the ordinance, that

is not the case here. Newberry Station has not identified any

provision of the FCZO that establishes standards for the Board

to consider with respect to hazardous or toxic substances.

There is no standard, for example, obligating the Board to

consider the types or quantities of such materials, or

regulating the production, use, storage, treatment, or disposal

of such materials, even if identified by the applicant. Cf.

FCZO § 9-011(7)(H). Therefore, an applicant’s failure to

28
identify the materials does not impede, obstruct, or adversely

affect the Board’s consideration of any such standard.

Accordingly, the record contains sufficient evidence of

reasonableness to make the Board’s approval of the Application

fairly debatable. To the extent Newberry Station adduced

evidence of unreasonableness, the Board met the challenge “by

some evidence of reasonableness,” and its decision “must be

sustained.” Town of Leesburg, 280 Va. at 606, 701 S.E.2d at

788. The circuit court therefore did not err in awarding the

Board summary judgment and we will affirm that portion of its

judgment.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the circuit court.

Affirmed.

JUSTICE McCLANAHAN, concurring.

I agree with the majority's analysis and conclusion as to

the sufficiency of the evidence issue. Also, I agree with the

majority's conclusion that Supervisors Hudgins and McKay did

not have conflicts within the meaning of Code § 15.2-852(A). I

write separately, however, because I believe the Board of

Supervisors of Fairfax County (the "Board") reads subsection A

of the statute correctly, which is much more limited in scope

than the majority's construction.

29
 The second paragraph of Code § 15.2-852(A) sets forth, in

concise terms, the circumstances requiring a Board member's

recusal. This Court may not, "under the guise of statutory

construction," read into this provision words not used and

meaning not readily derived from its language. Lahey v.

Johnson, 283 Va. 225, 230, 720 S.E.2d 534, 537 (2012). "'When

the legislature has spoken plainly it is not the function of

courts to change or amend its enactments under the guise of

construing them. The province of [statutory] construction lies

wholly within the domain of ambiguity, and that which is plain

needs no interpretation.'" Id. (quoting Doss v. Jamco, Inc.,

254 Va. 362, 370, 492 S.E.2d 441, 445 (1997)).

Furthermore, to the extent there is any doubt as to the

meaning of Code § 15.2-852(A), the fact that there is a penal

aspect to this provision must be considered. Subsection C of

Code § 15.2-852 states that "[a]ny person knowingly and

willfully violating the provisions of this section shall be

guilty of a Class 1 misdemeanor." Therefore, any construction

of the statute must "limit its application to cases falling

clearly within its scope." Robinson v. Commonwealth, 274 Va.

45, 51, 645 S.E.2d 470, 473 (2007)(citing Farrakhan v.

Commonwealth, 273 Va. 177, 181, 639 S.E.2d 227, 230 (2007);

Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338

(1983)).

30
 Guided by these principles, I believe paragraph two of

Code § 15.2-852(A) should be read to mean, as it plainly

states, that if a member of a board of supervisors has a

"business or financial interest" with any of the named

individuals, which specifically "involv[es] the relationship of

employee-employer, agent-principal, or attorney-client," then

the board member must disclose "such relationship" and decline

to participate in the hearing.

Contrary to the majority, I do not read the operative

limiting language of "relationship of employee-employer, agent-

principal, or attorney-client," to apply only to the phrase

"any of the other persons above specified." Code § 15.2-

852(A). That phrase is simply a shorthand identifier of the

individuals listed in subparts (iii) and (iv) of the first

sentence of subsection A, who are in the same class as the

other individuals listed in paragraph two. It is apparent that

the legislature would use such shorthand phraseology in

subsection B because it used this same shorthand twice in

subsection A (in the second and third sentences).

Nor do I agree that the definition of "business or

financial relationship" in the first paragraph of the statute

(in describing the circumstances when a board member need only

make a disclosure) can be imported to paragraph two by

substituting the term "business or financial relationship" for

31
"business or financial interest." The legislature plainly used

different terms in each paragraph. With the former, the

legislature identified a wide range of "relationships" that a

board member would be required to disclose. With the latter,

the legislature identified a much more limited range of

"interests" requiring recusal of the board member by limiting

such "interests" to those "involving the relationship of

employee-employer, agent-principal, or attorney-client."

Accordingly, I believe we are bound by the language as

plainly stated in the second paragraph of Code § 15.2-852(A)

and may look no further to determine its meaning. See Doss,

254 Va. at 370, 492 S.E.2d at 446 ("In the absence of

ambiguity, a court may look only to the words of the statute to

determine its meaning, and when the meaning is plain, resort to

rules of construction, legislative history, and extrinsic

evidence is impermissible." (citing Harrison & Bates, Inc. v.

Featherstone Assocs. Ltd. P'ship, 253 Va. 364, 368, 484 S.E.2d

883, 885 (1997); Virginia Dept. of Labor v. Westmoreland Coal

Co., 233 Va. 97, 99, 353 S.E.2d 758, 760 (1987); Brown v.

Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). I thus

conclude that, because the positions Supervisors Hudgins and

McKay had with the WMATA Board of Directors did not involve the

relationship of employee-employer, agent-principal, or

attorney-client, they were not required under Code § 15.2-

32
852(A) to recuse themselves from voting on the subject

application for a special exception.

For these reasons, I concur.

33